





N.Y. 




Class_MY^J45- 
BookJ:^ilA8__ 



CONSTABLES' GUIDE 



CONTAINING 

A FULL EXPOSITION OF THEIR RIGHTS, PRIVILEGES, 

DUTIES AND LIABILITIES, GIVING THE 

STATUTES, BOTH CIVIL AND CRIMINAL 

OF THE STATE OF NEW YORK 



ANNOTATIONS, DECISIONS, EXPLANA- 

TOEY NOTES, FOEMS, AND A 

DIGEST OF THEIE 

FEES. 



/ 



i BY 

MELVIN T?BENDER and HAROLD J. HINMAN 

Of the Albany, N. Y. , Bar. 



ALBANY, N. Y. : 

MATTHEW BENDER, Law Publishee, 

1904 



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THF. LIBRARY OF 
CONGRESS. 

Two Copies Received 

OCT 1 1904 

Copyright Entry 

CUSS CL XXc. NO! 

COPY A. 



Copyright, 1904, 
Ey MATTHEW BENDER. 



PREFACE. 



The intent of this Manual is to furnish a hand book and 
guide for all constables, giving their powers, duties and 
liabilities and each step to be taken in the performance of 
their official duties. The statutes, both civil and criminal, of 
the State of New York, relating thereto, are given as amended 
to date of publication, together with annotations, including 
decisions of the court and explanatory notes. 

A special chapter treats of official neglect and misconduct 
of constables; and the subjects of proper service of papers 
and levying and selling under execution have been treated 
fully and with especial attention. 

All the fees of constables, both civil and criminal, and all 
forms which will be of use to them are also given. 

It has been deemed advisable also, where a section of the 
law contains material relating to others than constables, to 
give only such portion of the section which bears upon con- 
stables, so as not to enlarge the book with extraneous matter 
and to simplify the reading of the law for the constable as 
much as possible. 

Wherever a citation has been made from the General 
Laws, reference has been intended to be made to Heydeeker's 
General Laws, Second Edition. The abbreviations, Code Civ. 
Pro. and Crim. Code, refer to the Code qf Civil Procedure, 
and the Criminal Code, respectively. 

In short, the authors' aim has been to make this Manual a 
complete guide for constables, treating at length on the subjects 
which are of most importance to them, grouping the sections 
of the law together under intelligible headings, which are 
readily referred to and giving such explanatory notes and 
decisions of the courts as may assist the constable to more 
readily ascertain and understand his powers, duties, and 
liabilities. 

Albany, N. Y., September 10, 1904. 

BENDER & HINMAN. 



TiVBT.E OF CONTE]^^TS. 



PAGE. 

CHAPTER I. Election, Qualification, Term of office, 

etc 1 

II. Special Constables, Appointment and 

PoTrers 6 

III. Official Neglect or Misconduct 7 

IV. Attendance Upon Court 14 

V. Service of Summons 15 

VI. Trial 23 

VII. Subpoena 27 

VEIL Execution 29 

IX. Order of Arrest 42 

X. Warrant of Attachment 44 

XL Eeplevin 48 

XII. Summary Proceedings to Recover Real 

Property 53 

XIII. Straying Animals Upon the High- 
ways 56 

XIV. Magistrates and the Warrant of 

Arrest 58 

XV. Arrest 62 

Section 1. Arrest by an officer 

under a warrant 62 

2. Arrest by an officer with- 

out a warrant 63 

3. Retaking, after an es- 

cape or rescue 64 

4. Recommitment of defend- 

ant 65 

5. Bench warrant 65 

6. Peace warrant 68 

7. Habeas Corpus 6S 

8. Coroner's warrant 69 



PAGE. 

CHAPTER XVI. Special Proceedings of a Criminal 

Nature 69 

SectiojST 1. Search warrant 69 

2. Disorderly persons 72 

3. Bastardy proceedings . . 73 

4. Proceedings against cor- 

porations 74 

5. Disposal of property, 

stolen or embezzled. . . 75 

6. Compelling attendance of 

witnesses 75 

XVII. Courts of Special Sessions 76 

XVIII. Duties of Constable as Peace Officer 

Generally 78 

XIX. Constable's Fees in Civil Cases 80 

XX. Constable's Fees in Criminal Cases. . 83 

Forms for Constables 87 



Constables' Guide 



CHAPTER I. 

Election, Qualification, Term of Office, etc. 

Qualifications for holding office. — No person 
shall be capable of holding a civil office who shall 
not, at the time he shall be chosen thereto, be of 
full age, a citizen of the United States, a resident 
of the state, and if it be a local office, a resident of 
the political subdivision or municipal corporation 
of the state for which he shall be chosen, or within 
which the electors electing him reside, or within 
which his official functions are required to be exer- 
cised. Public Officers Law, § 3 (Gen'l Laws, p. 

451)- 

Every elector of the town is eligible to the office 
of constable. Town Law, § 50 (Gen'l Laws, 
p. 1419). 

Election of constables. — The electors of each 
town may at their biennial town meeting, determine 
what number of constables, not exceeding five, shall 
be chosen in their town for the two years immedi- 
ately following. Town Law, § 22 (Gen'l Laws, 
p. 1409). At such town meeting in each town, the 
number of constables decided upon are elected, to- 
gether with the other town officers. Town Law, 
§ 12 (Gen'l Laws, p. 1404). If such town meeting 
has duly fixed the number of constables, votes cast 
for more candidates than the number limited, are 
wholly void. 8 Wend. 396. 



2 Constables' Guide. 

A person who holds the office of constable, or is 
a candidate for that office, cannot be appointed or 
elected an inspector of election, poll clerk or ballot 
clerk for any election at which his name is to be 
voted on. Elec. Law, § ii (Gen'l Laws, p. 308). 

Constables, when elected, hold office for two 
years. Town Law, § 13 (Gen'l Laws, p. 1404)- 
And until others are chosen or appointed in their 
places, and have qualified. 

Oaths of office of town officers ; how administered ; 
filed in town clerk's office; effect of failure to exe- 
cute and file oath and undertaking. — Every person 
elected or appointed to any town office, except jus- 
tice of the peace, shall before he enters on the 
duties of his office, and within ten days after he 
shall be notified of his election or appointment, 
take and subscribe before some officer authorized 
by law to administer oaths in his county, the con- 
stitutional oath of office, and such other oath as 
may be required by law, which shall be admin- 
istered and certified by the officer taking the same 
without reward, and shall within eight days be 
filed in the office of the town clerk, which shall be 
deemed an acceptance of the office ; and a neglect 
or omission to take and file such oath, or a neglect 
to execute and file, within the time required by 
law, any official bond or undertaking, shall be 
deemed a refusal to serve, and the office may be 
filled as in case of vacancy. Town Law, § 51 
(Gen'l. Laws, p. 1420). 

Constitutional oath. — The form of an official oath as pre- 
scribed by the Constitution, art. 13, sec. 1, is as follows: 
'' I do solemnly swear ( or affirm ) that I will support the 
Constitution of the United States, and the Constitution of the 
State of New York, and that I will faithfully discharge the 
duties of the office of constable, according to the best of my 
ability." And the Constitution also provides in this section 
that all such officers who shall have been chosen at any elec- 
tion shall, before they enter on the duties of their respective 
offices, take and subscribe the oath or affirmation above pre- 



ELECTION;, Qualification^, Etc. 3 

scribed, together with the following addition thereto: "And 
I do further solemnly swear (or affirm) that I have not di- 
rectly or indirectly paid, offered or promised to pay, con- 
tributed or offered or promised to contribute any money or 
other valuable thing as a consideration or reward for the 
giving or withholding a vote at the election at which I was 
elected to said office, and have not made any promise to in- 
fluence the giving or withholding any such vote." 

Town officers who administer oaths in town office 
may administer any necessary oath in any matter 
or proceeding lawfully before him, or to any paper 
filed with him as such officer. Town Law, § 56 
(Gen'l LaAvs, p. 1421). 

A constitutional oath of office may be taken " Before some 
officer authorized by law to administer oaths." It is probable 
that a constitutional oath of office of a constable may be 
taken before a town clerk. 

Constable's undertaking. — Every person elected 
or appointed to the office of constable shall, before 
he enters on the duties of his office, and within ten 
days after he shall be notified of his election or ap- 
pointment, execute in the presence of the super- 
visor or town clerk of the town, with at least two 
sufficient sureties, to be approved by such super- 
visor or clerk, an undertaking to the effect that 
such constable and his sureties will pay to each and 
every person, who may be entitled thereto, all such 
sums of money as the constable may become liable 
to pay on account of any execution which shall be 
delivered to him for collection; and also pay each 
and every person for any damages which he may 
sustain from or by any act or thing done by such 
constable by virtue of his office. The supervisor 
or town clerk shall indorse on the undertaking his 
approval of the sureties therein named, and shall 
cause the same to be filed in the office of the town 
clerk within ten days thereafter. Town Law, § 54 
(Gen'l Laws, p. 1421). 

Bond of constable. — The terms "bond" and "under- 
taking" are identical. For form of "bond," see Form No. 1, 
p. 87, 



4 Constables' Guide. 

Acting in public office without having qualified. — 

A person who executes any of the functions of a 
public office without having taken and duly filed 
the required oath of office, or without having exe- 
cuted and duly filed the required security, is guilty 
of a misdemeanor as prescribed by law. Penal 
Code, § 42. 

Failure to file candidate's statement of election 
expenses. — Every candidate who is voted for at 
any public election held within this State shall, 
within ten days after such election, file as herein- 
after provided an itemized statement showing in 
detail all the moneys contributed or expended by 
him, directly or indirectly, by himself or through 
any other person, in aid of his election. Such state- 
ment shall give the names of the various persons 
who received such moneys, the specific nature of 
each item, and the purpose for which it was ex- 
pended or contributed. There shall be attached to 
such statement an affidavit subscribed and sworn to 
by such candidate, setting forth in substance that 
the statement thus made is in all respects true, and 
that the same is a full and detailed statement of all 
moneys so contributed or expended by him, directly 
or indirectly, by himself or through any other per- 
son, in aid of his election. The candidates for town, 
village and city offices, excepting in the city of New 
York, shall file their statements in the office of the 
town, village or city clerk, respectively. Any candi- 
date for office who refuses or neglects to file a 
statement as prescribed in this section shall be 
guilty of a misdemeanor, and shall also forfeit his 
office. Penal Code, § 41W. 

Resignation of town officers. — Any three justices 
of the peace of a toAvn may, for sufficient cause 
shown to them, accept the resignation of any town 
officer of their town; and whenever they shall 
accept any such resignation, they shall forthwith 



Electiox^ QuALincATiox^ Etc. 5 

give notice thereof to the town clerk of the town. 
Town Law% § 64 (Gen'l Laws, p. 1423). 

Resignation of public officers generally. — The Public 
Officers Law, sec. 21, provides that every town officer may 
resign his office to the town clerk. Every resignation shall 
be in writing addressed to the officer or body to whom it is 
made. If addressed to the officer, it shall take effect upon 
delivery to him at his place of business, or when it shall be 
filed in his office. A delivery at the office or place of business 
of the person to whom any such resignation may be delivered, 
shall be a sufficient delivery thereof. 

It is probable that the above section of the Town Law is 
in force and is to be construed in connection with section 
21 of the Public Officers Law. For form of resignation of 
town officers, see Form Xo. 2, p. 89. 

Vacancies, how created. — Every office shall be 
vacant upon the happening of either of the follow- 
ing events before the expiration of the term thereof : 
(i) The death of the incumbent; (2) His resigna- 
tion; (3) His removal from office; (4) His ceasing 
to be an inhabitant of the State, or if he be a local 
officer, of the political subdivision, or municipal 
corporation of which he is required to be a resi- 
dent when chosen; (5) His conviction of a felony, 
or a crime involving a violation of his oath of office ; 
(6) The judgment of a court, declaring void his 
election or appointment, or that his office is for- 
feited or vacant; (7) His refusal or neglect to file 
his official oath or undertaking, or to file a renewal 
undertaking within the time required by law. Pub- 
lic Officers Law, § 20 (Gen'l Laivs, p. 457). 

Forfeitures. — An officer asking or receiving bribes upon 
conviction forfeits his office and is disqualified from holding 
any other office (Penal Code, § 45); as also an officer who 
grants to another for pay or any reward, consideration or 
gratuity, the right to discharge any of the functions of his 
office (Penal Code, § 54) ; also a constable who allows a 
person to escape from his lawful custody (Penal Code, § 90) ; 
also a person convicted of paying money for votes at an 
election at which he was elected.^ Penal Code, § 41. 

Vacancies, appointment to fill, how made and 
when filled. — When a vacancy shall occur or exist 



6 Constables' Guide. 

in any town office, the town board or a majority of 
them may, by an instrument under their hands and 
seals, appoint a suitable person to fill the vacancy, 
and the person appointed, except justices of the 
peace, shall hold the office until the next biennial 
town meeting. The board making the appointment 
shall cause the same to be forthwith filed in the of- 
fice of the town clerk, who shall forthwith give 
notice to the person appointed. Town Law, § 65 
(Gen'l Laws, p. 1423). 



CHAPTER II. 
Special Constables; Appointment and Powers. 

The supervisor and two justices of the peace of 
any town may, when in their judgment necessary 
for the preservation of the public peace during any 
period of three days or less, appoint five or less 
special constables of such town for such period. 
Duplicate certificates of the appointment, signed by 
such supervisor and such justices of the peace as 
such, shall be delivered to each of such special con- 
stables, specifying the days for which he is so ap- 
pointed, and one of such duplicates shall be by such 
special constables filed with the town clerk of said 
town. The supervisor of such town shall cause to 
be provided and furnished to each of such special 
constables a badge on which shall be plainly writ- 
ten the words, '' special constable,'' which shall be 
worn conspicuously by each of such special consta- 
bles while serving as such, and be delivered by him 
on the completion of his service to the supervisor of 
such town, who shall preserve the same for future 
use and deliver the same to his successor in office, 
who shall preserve the same when not in use. Each 
of such special constables, while in office as such, 
shall be a peace officer, and have all the powers 
and be subject to all the duties and liabilities of a 
constable of such town in all criminal actions and 



Official Neglect or Misconduct. 7 

proceedings and special proceedings of a criminal 
nature, and shall be entitled to receive compensation 
from the town at the rate of two dollars per day 
during his term of office. Town Law, § 41 (Gen'l 
Laws, p. 1417). 



CHAPTER III. 

Official Neglect or Misconduct. 

(a) Liability for improper performance of duty. — 

It is the settled law of the State that the negligent 
omission of a public officer to perform a ministerial 
duty, or an improper discharge thereof, renders him 
liable to a legal proceeding compelling him to do 
his duty, and makes him liable to pay damages to 
the injured party. 34 N. Y. 389. If an officer ne- 
glects to arrest the judgment-debtor named in an ex- 
ecution which is issued against such defendant, and 
placed in the hands of the officer for execution, he 
will be liable to an action for a neglect of duty. 38 
Barb. 18. So, if the officer neglects to collect the 
money upon an execution, or to return it within the 
time prescribed by law for that purpose, he will be 
liable to the plaintiff named in the execution, for 
such neglect; and, the measure of damages is the 
amount of the execution, unless the officer can show 
that the defendant in such execution had no prop- 
erty out of which the debt could have been collected. 
39 Barb. 69. An officer is required to take the same 
care of property seized by him under an attachment 
or execution, that a careful man of good sense would 
exercise over the property if it were his own ; and 
if he exercises that care, he will not be liable for 
injuries to it while in his custody. 2.y N. Y. 234. 

In case of illegal acts done by officers, an action 
of trespass is usually brought against the court or 
officers issuing the process, the officer who executes 
such process, the party who procured it to be issued 



•8 COIN'STABLES' GuiDE. 

and the persons who assisted the officer in execut- 
ing the process. 

In the first place, a justice ought not to issue any- 
process without a compliance with the law relating 
to the issuing of such process. In relation to con- 
stables and other ministerial officers, the general 
rule is that, if the court or justice who issues the 
process had jurisdiction of the subject-matter of 
the action or proceeding, and there is nothing on 
the face of the process to show the constable that 
the justice did not have such jurisdiction, the con- 
stable would be protected in the execution of the 
process. 5 Wend. 170. When an execution is di- 
rected to an officer to be executed, he is not bound 
to inquire whether there is a judgment to support it, 
or whether the execution corresponds exactly with 
the judgment. If it is regular upon its face, it is 
his duty to execute it. Any other irregularity or 
error in it affects the parties but not the officer. 
9 N. Y. 208. But, although such is the right of the 
constable, he is under no legal obligation to serve 
such process, and its invalidity is always a good 
answer to such an action brought against him for 
refusing to execute it. 16 Wend. 567. 

While the process under which an officer acts 
may furnish protection for doing any legal act com- 
manded by it, yet it will furnish no protection to 
him for any act in excess of the authority conferred 
by the process. 46 App. Div. 260. 

Whenever a sheriff or constable has power to 
execute process in a particular manner, his author- 
ity is a justification to himself and all who come in 
his aid; but, if his authority is not sufficient to jus- 
tify him, neither can it justify those who aid him. 
He has no power to command others to do an un- 
lawful act. They are not bound to obey when com- 
manded to do an unlawful act, and if they do obey, 
it is at their peril. 10 Wend. 128, 138, 139. An officer 
is not protected in executing a warrant if it is not 
directed to him nor to a class of officers of which 



Official Xeglect oe Misconduct. 9 

he is one, nor if it has no direction at all. 6 Barb. 
654. So, where a warrant or attachment is directed 
to a particular officer, or the officers of a particular 
town, no other officer is authorized to execute it, 
and he will be a trespasser if he does so. 5 Denio, 
352. If a warrant, execution or other process is 
void on its face, for the reason that it commands 
an act to be done in an illegal manner, the officer 
will not be protected even if he execute it in a legal 
manner. 16 Wend. 607. If a constable serves 
an attachment or levies an execution after the re- 
turn day of the process without instructions from 
the plaintiff to do so, the officer alone would be 
liable. 9 Johns. 117. If an execution is issued 
against the property of a certain person, a con- 
stable will be liable to an action if he takes the 
goods of another person. So, under the code, a 
requisition in replevin protects the officer only in 
taking the property specified, from the defendant 
named in the action, or his agent. 70 N. Y. 208. 
If, however, the defendant named in the requisition 
has actual possession of the property, the process 
is a protection, although there has been a transfer 
of title, and a change of possession to some other 
person has been intended. 50 N. Y. 352. 

The statute requiring a constable to return an 
execution to the justice is not to be applied by con- 
struction to render him liable for not so doing when 
the justice has abandoned his office and removed 
from the county ; but in such case, the statutes 
requiring a justice before so doing to file his books 
and papers with the town or city clerk, imply that 
the constable may make a return to such clerk. 46 
Hun, 151. 

A constable, to whom a mandate is directed and 
delivered, must execute the same according to the 
command thereof, and make return thereon of his 
proceedings, under his hand. For a violation of 
this provision, he is liable to the party aggrieved, 
for the damages sustained by him ; in addition to 



10 Constables'' Guide. 

any fine, or other punishment or proceeding, au- 
thorized by law. Code Civ. Pro. § 102. When 
serving such mandate, a constable must, upon the 
request of the person served, deliver to him a copy 
thereof, without compensation. Code Civ. Pro. 
§ loi. A promise by a constable to delay in the 
execution of process is void. 2 Johns. 193, 13 Johns. 
366, 6 Cow. 659. A constable to whom an execu- 
tion is directed has no power to delegate his au- 
thority to another constable. 6 Abb. Pr. 241, 2 
Hilt. 14. 

An officer to whose charge any juror is com- 
mitted by a court or magistrate, who negligently 
or willfully permits them, or any of them, without 
leave of the court or magistrate, to receive any com- 
munication from any person ; to make any com- 
munication to any person ; to obtain or receive any 
book or paper, or refreshment; or, to leave the jury 
room, is guilty of a misdemeanor. Penal Code, 

§ 77' 

An officer who, in violation of a duty imposed 
upon him by law to receive a person into his official 
custody, willfully neglects or refuses so to do, is 
guilty of a misdemeanor. Penal Code, § 116. 

A public officer, upon whom any duty is enjoined 
by law, who willfully neglects to perform the duty, 
is guilty of a misdemeanor. This section does not 
apply to cases of official acts or omissions the pre- 
vention or punishment of which is otherwise speci- 
ally provided by statute. Penal Code, § 117. 

A constable having arrested any person upon a 
criminal charge, who willfully and wrongfully de- 
lays to take such person before a magistrate having 
jurisdiction to take his examination, is guilty of a 
misdemeanor. Penal Code, § 118. 

An officer, who, in executing a search warrant, 
willfully exceeds his authority, or exercises it with 
unnecessary severity, is guilty of a misdemeanor. 
Penal Code, § 120. 



Official Neglect or Miscoistduct. 11 

(b) Liability of officers for an escape. — An es- 
cape is any liberty given to a prisoner which is 
not authorized by law. 30 Misc. 662. In an action 
against the sheriff or other officer for the escape of 
a prisoner, it is a good defense that the escape was 
without the assent of the sheriff or other officer, 
and that at the commencement of the action, he 
had the prisoner under his control either by volun- 
tary return or by recapture. Code Civ. Pro. § 171. 
Although a constable has sixty days in which to 
serve an execution, yet, if he arrests the defendant 
within that time, and then suffers him to go at 
large, that is an escape ; and his having the defend- 
ant in custody at the end of the sixty days is no 
legal excuse or defence for the escape. 13 Johns. 
503. A constable arrested a defendant on a civil 
warrant issued by a justice of the peace, and then 
left him at the place of arrest on his promise to 
follow — which he did not do — and in the mean- 
time he was arrested on a bench warrant in criminal 
proceedings by a deputy sheriff, so that the con- 
stable could not retake him and this was held to be 
an escape which rendered the constable liable. 6 
Johns. 62. So, where a sheriff arrested a defend- 
ant upon an execution and then permitted him to 
be arrested and taken away from his county by 
virtue of a criminal warrant issued in another 
county, this was held to be an escape which rend- 
ered the sheriff liable to an action. 9 How. 93. An 
attorney for a plaintiff in an action, has no au- 
thority from his general character as attorney to 
discharge the defendant from his arrest on the 
execution issued upon a judgment, until the money 
is paid; and it will be an escape if the officer dis- 
charges him without satisfaction of the judgment, 
even by the direction of such attorney. 8 Johns. 
361. A justice who renders a judgment and issues 
an execution thereon upon which the defendant is 
arrested by a constable, has no authority merely as 
a justice and without a special power from the 



12 Constables' Guide. 

plaintiff therein, to discharge the defendant from 
the arrest, and such discharge will be no defense to 
an action against the constable for the escape. 9 
Johns. 146. 

Where a sheriff or constable arrests a defendant 
on an execution and he then voluntarily permits 
him to escape, he cannot retake or detain him with- 
out a new authority from the plaintiff. By his 
own wrongful act he has lost all legal control over 
the defendant and no act of his own and no assent 
of the defendant, can avail him if the plaintiff elects 
to hold him liable. 15 Johns. 256. If an officer 
suffers a voluntary escape of a prisoner whom he 
has arrested, the party obtaining the arrest may 
have a new execution issued and retake the prisoner. 
3 N. Y. 331. Though a constable is not bound to 
notice the fact that a defendant is not liable to ar- 
rest on execution, yet if he chooses to notice it or 
neglects to take a person privileged from arrest, 
and he can show that he is so privileged, it is a 
good defense in an action against him. 11 Johns. 

433- 

A constable, who allows a prisoner, lawfully in 
his custody, in any action or proceeding, civil or 
criminal, to escape or go at large, except as per- 
mitted by law, or connives at or assists such escape, 
or omits an act or duty whereby such escape is oc- 
casioned, or contributed to, or assisted, is, if he 
corruptly and willfully allows, connives at, or as- 
sists the escape, guilty of a felony; and in any other 
case, is guilty of a misdemeanor. Penal Code, § 89. 

An officer who is convicted of a felony as speci- 
fied by the last section, forfeits his office, and is 
forever disqualified to hold any office, or place of 
trust, honor, or profit, under the constitution or 
laws of this State. Penal Code, § 90. 

A constable who either receives any gratuity, or 
reward, or any security or promise of one, to pro- 
cure, assist, connive at or permit any prisoner in his 
custody to escape, whether such escape is attempted 



Official Nek^lect or Misconduct. 13 

or not; or, commits any unlawful act tending to 
hinder justice, is guilty of a misdemeanor. Penal 
Code, § 115. 

(c) Liability for accepting rewards and for buy- 
ing claims, etc. ; reward to constable forbidden. — A 

constable shall not ask or receive any money or 
other valuable thing from, any person, as a con- 
sideration, reward, or inducement for omitting or 
delaying to arrest a person, or to take him to jail, 
or to sell property, by virtue of an execution, or to 
execute any other duty, pertaining to his office ; or 
any money or valuable thing, other than the fees 
expressly allowed to him by law, for executing any 
duty pertaining to his office. Code Civ. Pro. § 3136. 

Justice or constable not to buy claim, etc. — A 

justice of the peace or constable shall not, directly 
or indirectly, buy, or be interested in buying, a 
bond, note, or other demand or cause of action, for 
the purpose of bringing an action or instituting a 
special proceeding before a justice founded there- 
upon; nor shall a justice or a constable, either be- 
fore or after an action or a special proceeding is 
commenced, lend or advance, or agree to lend or 
advance, or procure to be lent or advanced, any 
money or other valuable thing to any person, in 
consideration of, or as a reward for, or an induce^ 
ment to, the placing or having placed in^his hands, 
a debt or other demand or cause of action, for prose- 
cution or collection. Code Civ. Pro. § 3137. 

Penalty. — A justice of the peace or constable 
who violates a provision of the last two sections, is 
guilty of a misdemeanor; and shall be punished 
accordingly. A conviction also operates as a for- 
feiture of his office. Code Civ. Pro. § 3138. 

(d) Constable not to practice as attorney. — A 

constable cannot, during his continuance in office. 



14 Constables' Guide. 

practice as an attorney or counsellor in any court. 
Code Civ. Pro. § 62. But under section 2889, Code 
Civ. Pro., in any place except the city of New York, 
any person other than the constable who served the 
summons or the venire, or the law partner or clerk 
of the justice, may be the attorney for a party to 
an action before a justice of the peace. 



CHAPTER IV. 
Attendance Upon Courts. 

Sheriffs to notify constables, et cetera, to attend 
courts. — The sheriff of each county, except New 
York and Kings, must within a reasonable time 
before the sitting*, in his county, of any term of 
court, notify, in writing or personally, as many con- 
stables or deputy sheriffs of his county, as he deems 
necessary, to appear and attend upon the term dur- 
ing its sitting. Code Civ. Pro. § 97. 

Penalty for neglect of officer to attend court. — 
Each constable or deputy sheriff, seasonably noti- 
fied, as prescribed in the last two sections, must 
attend the term accordingly; and for each day's 
neglect he may be fined by the court, at the term 
which he was notified to attend, a sum not exceed- 
ing five dollars. Code Civ. Pro. § 99. 

When sheriff, constable, etc., to act as crier. — A 
sheriff, deputy sheriff, or constable, attending a 
term of a court of record, must, when required by 
the court, act as crier therein ; and he is not entitled 
to any additional compensation for that service. 
Code Civ. Pro. § 92. 



Service of Summons. 15 



CHAPTER V. 

Service of Summons. 

Contents of summons. — The summons must be 
directed, generally, to any constable of the county 
where the justice resides; and it must command 
him to summon the defendant to appear before 
the justice, at a place specified therein, to answer 
the complaint of the plaintiff in a civil action. 
Where the summons is accompanied with an order 
to arrest the defendant, it must be made returnable 
immediately upon the arrest of the defendant, 
within tvv^elve days after the day when it was is- 
sued; in every other case, it must be returnable 
at a time therein specified, not less than six nor 
more than twelve days after the day v/hen it was 
issued. A summons shall not be made returnable 
on a legal holiday. Code Civ. Pro. § 2877. 

In an action to recover a penalty or forfeiture given by a 
statute of the State, if a copy of the complaint is not de- 
livered to the defendant with a copy of the summons, section 
1897 requires an indorsement referring to the statute as fol- 
lows: "According to the provisions of,^^ etc., adding such a 
designation of the statute as will sufficiently identify it. 

General requisites of mandates. — A mandate, is- 
sued by a justice of the peace, must be signed by 
him, and may be without seal. It must be entirely 
filled up, at the time when it is delivered to an 
officer to be executed, so as to have no blank, either 
in the date thereof or otherwise; except that there 
may be a blank in a subpoena for the name of any 
or all of the witnesses. A mandate, issued and de- 
livered to an officer to be executed, contrary to this 
section, is void. Code Civ. Pro. § 3135. 

Under section 22, Code Giv. Pro., all process must be in the 
English language. 

Constable to execute mandates in person. — A con- 
stable, to whom a mandate is directed and delivered 



16 Constables' Guide. 

must execute it in person, pursuant to the tenor 
thereof. He cannot act by deputy in such a case. 
Code. Civ. Pro. § 3157. 

Sheriff to act where execution of mandate is re- 
sisted. — If a constable, to whom a mandate, issued 
by a justice of the peace, is directed and delivered, 
finds, or has reason to apprehend, that resistance 
will be made to the execution thereof, he may de- 
liver it to the sheriff of the county, with a written 
certificate, stating the facts, and requiring the 
sheriff to execute it. Thereupon the sheriff must 
execute the mandate; and he is subject to all the 
liabilities attaching to a constable in executing it. 
Code Civ. Pro. § 3158. 

Service of summons. — Personal service of the 
summons must be made by delivering a copy 
thereof to the defendant ; except where it is specially 
prescribed in this chapter that personal service may 
be made by delivering a copy to another person. 
Where service of a summons is personal, it must 
be made at least six days before the time of ap- 
pearance specified therein ; except where it is ac- 
companied with an order of arrest. Code Civ. Pro. 
§ 2878. 

"When may be served. — It may be served at any hour of 
the day. Service on a Sunday is void. Penal Code, § 268. 
And where service is made on a Saturday upon any person 
who keeps Saturday as holy time and where such service is 
maliciously procured, the party so procuring service, or who 
serves upon such person any process returnable on that day, 
is guilty of a misdemeanor. Penal Code, § 271. It may be 
served in any other case on a Saturday. Service on an elector 
on election day is void. 11 How. 189. But this does not 
apply to a process or proceeding against a board or its chair- 
man having public duties to perform, as, for instance, an 
inspector of election, and does not prevent service on him 
of a mandamus requiring him to permit a person to vote. 
45 St. Pep. 141. With the exception of Sunday or a day of 
general or special election, service of summons may properly 
be made on any day. 56 Hun, 423. Service on holidays is 
valid. 25 Misc. 783. 



Service of Summons. 17 

WTiere served. — The summons cannot be served out of the 
county wherein it was issued. And where the jurisdiction 
of the court issuing the process is limited to cities it must 
be served within the city limits. 78 IST. Y. 64. The constable's 
return of service of summons need not state where service 
was made, since it was presumably within the county. 25 
App. Div. 9. 

HoDir served. — A copy of the summons must be delivered 
to and left with the defendant personally. 7 Civ. Pro. R. 408. 
Where a person, upon whom service of process is desired to 
be made, refuses to receive the papers, the officer making 
the service should inform him of the nature of the papers 
and of his purpose to make service of them, and lay them 
down at any appropriate place in his presence; but the officer 
has no right to commit an assault and battery upon an in- 
dividual in trying to serve the papers upon him. 24 How. 39. 

Where effort to avoid service is shown, the throwing of the 
process into the hall by the process-server on being refused 
admission, the process falling near defendant and his atten- 
tion being called to it, may be sufficient personal service. 30 
Abb. X. C. 6d. 

A nonresident witness (that is, one who lives outside of 
the county), while attending examination, is exempt from 
service of a summons, but a resident witness is not exempt. 
11 Hun, 474. But nonresident witnesses may lose their ex- 
emption by remaining an unreasonable and unnecessary length 
of time within the county after their examination as witnesses 
is over. 46 St. Rep. 660. The same rules apply to the service 
of summons upon a nonresident party to an action, while at- 
tending court. 87 X. Y. 568. 

A party attending an action on trial in a county other than 
that in which he resides is exempt from the service of a sum- 
mons in a civil action in a justice's court of such county. 74 
Hun, 130. 

This privilege of the nonresident does not apply to a non- 
resident brought into the State on a criminal charge. 26 Misc. 
504. 

A constable has no right to unlatch the outer door of the 
defendant's house, for the purpose of serving the summons; 
and such an entry will be a trespass. If, however, on knock- 
ing at the outer door, or ringing the door bell, any proper 
person appears, and invites him into the house, he may 
lawfully enter therein, and if the defendant is there he may 
serve the summons upon him as lawfully as in any other 
place. 

So, if a constable finds the outer door of the defendant's 
house open, he may lawfully enter the house to serve a sub- 
poena. The same rule applies to the service of a summons, 
and the constable may legally serve the summons, in such a 
case, even though he is ordered to leave the house. He is not 



18 Constables' Guide. 

bound to leave until he can serve his process, and if an at- 
tempt is made to put him out of doors, for the purpose of 
preventing such service, he may resist such attempt, if he 
does nothing more than is necessary in self-defense. 20 Barb. 
16. 

It is sometimes said that a constable is not bound to look 
for a defendant at any place except his dwelling-house. But 
this statement is not founded upon authority. It is not easy 
to lay down any general rule measuring the degree of dili- 
gence required of a constable in making search for a de- 
fendant in an attempt to serve process upon him. There 
is no reason why the constable should not use all reasonable 
diligence to find the defendant within the county in every 
case where personal service is required. What is reasonable 
diligence in a given case is a question of fact to be determined 
by all the surrounding circumstances. 

The law formerly required that a summons should be served 
by reading it to the defendant and by delivering to him a 
copy, if required. In common practice the reading of the 
summons was omitted and the officer merely stated its con- 
tents. Under the present practice even this is dispensed with 
and a delivery of a copy of the summons to the defendant is 
all that is required. If the defendant refuses to receive the 
copy when tendered to him by the officer, the officer should 
leave it near the defendant, and this will be a sufficient service. 
2 Misc. 588. 

Wlien service not legal. — A constable cannot serve a 
summons in an action in which he is plaintiff. 23 Misc. 544. 

Service of summons is not good where there has been any 
fraud, trick or misrepresentation to induce the party to come 
within the county so as to be served. 14 Abb. N. S. 3Sl. 

Service of complaint with summons. — When a 
verified complaint is to be served with the sum- 
mons, '' said summons and complaint shall be at- 
tached and shall be served upon the defendant by- 
delivering to and leaving with him, personally, true 
copies thereof, not less than six nor more than 
twelve days before the return day thereof, and the 
official certificate of the constable making such ser- 
vice shall be sufficient evidence thereof." Laws of 
i88i, ch. 414. Where complaint is attached, con- 
stable's return should show that he served the com- 
plaint as well as the summons. 65 App. Div. 478. 
And he must show that he served the summons 
and complaint on the defendant by personally de- 



Service of Summons. 19 

livering to and leaving with him true copies thereof. 
25 N. Y. St. Rep. 265. 

Service of summons upon a corporation. — Where 
the defendant to be served is a corporation, or per- 
son, company or partnership doing business in an- 
other county than that in which he or it resides, 
the summons may be personally served upon it or 
him by delivering a copy thereof to an officer, man- 
aging agent or person to whom a copy of the sum- 
mons in an action brought against the corporation 
in the Supreme Court might be delivered as pre- 
scribed in sections 431 and 432 of the Code of Civil 
Procedure, or, to any director, managing agent or 
trustee of the corporation, person, partnership or 
company by whatever official title he or it is called. 
Code Civ. Pro. § 2879. 

Personal service of summons upon a domestic cor- 
poration. — Personal service of the summons upon a de- 
fendant, being a domestic corporation, must be made by de- 
livering a copy thereof, within the State, as follows: 

1. If the action is against the mayor, aldermen, and com- 
monalty of the city of New York, to the mayor, comptroller, 
or counsel to the corporation. 

2. If the action is against any other city, to the mayor, 
treasurer, counsel, attorney, or clerk; or, if the city lacks 
either of those officers, to the officer performing correspond- 
ing functions, under another name. 

3. In any other case, to the president or other head of the 
corporation, the secretary or clerk to the corporation, the 
cashier, the treasurer, or director or managing agent. Code 
Civ. Pro. § 431. 

The constable's certificate of service of summons upon a 
domestic corporation must state in what manner he served 
the summons on the company, giving the name and title of 
the officer served, so that it shall appear that it was served 
on the defendant by personal service upon its proper agent. 27 
Misc. 722. 

Personal service of summons upon a foreign cor- 
poration. — Personal service of the summons upon a de- 
fendant, being a foreign corporation, must be made by deliver- 
ing a copy thereof, within the State, as follows: 

1. To the president, vice-president, treasurer, assistant 
treasurer, secretary or assistant secretary; or, if the cor- 
poration lacks either of those officers, to the officer perform- 
ing corresponding functions, under another name. 



20 CoisrsTABLES^ Guide. 

2. To a person designated for the purpose by a writing, 
under the seal of the corporation, and the signature of its 
president, vice-president, or other acting head, accompanied 
with the written consent of the person designated; and filed 
in the oflfice of the Secretary of State. The designation must 
specify a place, within the State, as the office or residence of 
the person designated; and, if it is within a city, the street, 
and street number, if any, or other suitable designation of 
the particular locality. It remains in force until the filing 
in the same office of a written revocation thereof, or of the 
consent, executed in like manner; but the person designated 
may, from time to time, change the place specified as his 
office or residence, to some other place within the State, by a 
writing, executed by him, and filed in like manner. The sec- 
retary of State may require the execution of any instrument, 
specified in this section, to be authenticated as he deems proper, 
and he may refuse to file it without such an authentication. 
An exemplified copy of a designation so filed, accompanied 
with a certificate that it has not been revoked, is presumptive 
evidence of the execution thereof, and conclusive evidence of 
the authority of the officer executing it. 

3. If such a designation is not in force, or if neither the per- 
son designated, nor an officer specified in subdivision first of 
this section, can be found with due diligence, and the corpora- 
tion has property within the State, or the cause of action 
arose therein; to the cashier, a director, or a managing agent 
of the corporation, within the State. Code Civ. Pro. § 432. 

Under the last section constable must try first to serve one 
of the persons mentioned in subdivisions 1 and 2 before serv- 
ing on one of the persons mentioned in subdivision 3, and if 
he has served one of the latter, constable must set forth in 
his return that due diligence has been made by him to serve 
on the persons mentioned in the first two subdivisions. 66 
App. Div. 582. 

Designation, by a resident, of a person upon -whom 
to serve a summons, during his absence. — A resident of 
the State, of full age, may execute, under his hand, and 
acknowledge, in the manner required by law to entitle a deed 
to be recorded, a written designation of another resident of 
the State, as a person upon whom to serve a summons, or 
any process or other paper for the commencement of a civil 
special proceeding, in any court or before any officer, during 
the absence from the State of New York of the person making 
the designation; and may file the same, with the written 
consent of the person so designated, executed and acknowl- 
edged in the same manner, in the office of the clerk of the 
county, where the person making the designation resides. The 
designation must specify the occupation, or other proper ad- 
dition, and the residence of the person making it, and also of 
the person designated; and it remains in force during the 



Service of Summons. 21 

period specified therein, if any; or, if no period is specified for 
that purpose, for three years after the filing thereof. But 
it is revoked earlier, by the death or legal incompetency of 
either of the parties thereto, or by the filing of a revocation 
thereof, or of the consent, executed and acknowledged in like 
manner. The clerk must file and record such a designation, 
consent, or revocation; and must note, upon the record of the 
original designation, the filing and recording of a revocation. 
While the designation remains in force, as prescribed in this 
section, a summons, or any process or other paper for the 
commencement of a civil special proceeding, against the per- 
son making it, in any court or before any officer, may be 
served upon the person so designated, in like manner and 
with like effect, as if it were served personally upon the person 
making the designation, notwithstanding the return of the 
latter to the State of New York. Code Civ. Pro. § 430. 

The designation of a person to receive service must be filed 
in the office of the county clerk, accompanied by a written con- 
sent of the person designated. Otherwise the designation is 
not valid and the person designated has no power to receive 
service. 7 Misc. 98. 

Service of summons upon railroad corporations. — 
Where the defendant to be served is a domestic railroad cor- 
poration, and no officer thereof resides in the county, to whom 
a copy of the summons may be delivered, as prescribed in 
section 2879, it may be personally served, by delivering a copy 
thereof to a local superintendent of repairs, freight agent, 
agent to sell tickets, or station keeper of the corporation, re- 
siding in the county; unless, at least thirty days before it 
was issued, the corporation had filed, in the office of the clerk 
of the county, a written instrument, designating a person re- 
siding in the county, upon whom process to be issued by a 
justice of the peace against it, may be served; in which case, 
the summons may be personally served by delivering a copy 
to the person so designated. Code Civ. Pro. § 2880. 

Service of summons upon express and insurance 
companies. — Where the defendant to be served is a cor- 
poration, association, partnership or person, doing business 
in the State as an express company or an insurance company, 
and no person resides in the county to whom a copy of the 
summons may be delivered, as prescribed in the foregoing 
sections of this article, it may be personally served on the 
express company by delivering a copy thereof to any local or 
general agent, to receive freight or parcels, route agent, or 
messenger of the defendant, residing in the county, and on 
any insurance company by delivering a copy thereof to any 
local or general agent of the defendant, residing in the county; 
unless, at least thirty days before it was issued, the defendant 
had filed, in the office of the clerk of the county, a written 
instrument, designating a person residing in the county, upon 



22 Constables' Guide. 

whom process to be issued by a justice of the peace against the 
defendant, may be served ; in which case, the summons may be 
personally served by delivering a copy thereof to the person 
so designated. Code Civ. Pro. § 2881. 

Liast two sections qualified. — Where a person has been 
designated, as prescribed in either of the last two sections 
and the designation has been revoked, or it appears, by affi- 
davit or the return of the constable, to whom a summons has 
been duly delivered for service, that the person designated is 
dead, or has ceased to reside within the county; or that he 
cannot, after due diligence, be found within the county, so as 
to deliver a copy of the summons to him; the original sum- 
mons, or the second or the third summons, issued as prescribed 
in the next section, may be served as if the designation had 
not been made. Such a designation may be revoked by a 
writing, executed and filed in like manner as required for 
the purpose of making the designation. Code Civ. Pro. § 2882. 

Second and third summons; effect thereof. — 
Where it appears, by the return of the constable, 
to whom a summons has been duly delivered for 
service, that it was not served, for any cause, a 
second summons may be issued by the same justice, 
in the same action, within twenty days after the 
first summons was issued; and, upon the like re- 
turn thereof, a third summons may be issued, 
within twenty days after the second was issued. 
The second or the third summons, as the case may 
be, relates back to the time when the first summons 
was issued; and with respect to all proceedings be- 
fore actual service, the service thereof has the same 
effect, as if the first summons had been seasonably 
served. For the purpose of issuing a new sum- 
mons, as prescribed in this section, a previous sum- 
mons may be returned upon the sixth, or any sub- 
sequent day, before the return day thereof. Code 
Civ. Pro. § 2883. 

Sheriff to permit access for purpose of service. — 

Subject to reasonable regulations, which the sheriff 
may establish for that purpose, a sheriff, jailor, or 
other officer, who has the custody of a prisoner, 
must permit such access to him as is necessary, for 



Trial. 23 

the personal service of a paper in an action or 
special proceeding, to which the prisoner is a party, 
and which must be personally served. Code Civ. 
Pro. § 132. 

Return of summons. — A constable, who serves 
a summons, must, at or before the time when^the 
same is returnable, make and deliver to the justice 
a written return thereof, under his hand, stating 
the time when, and the manner in which, he served 
it. A constable who fails seasonably to serve a 
summons, delivered to him for service, must make 
a written return thereof under his hand, stating 
that it was not served, and the reason why he failed 
to serve it. Code Civ. Pro. § 2885. 

The constable's return may be amended and the amendment 
should be allowed where the application is made on the, re- 
turn day of the summons. The return must show the time 
and manner of the service of the summons and the return must 
be made in writing to the justice who issued the summons. 
But where the return of a constable is written by his direction 
and in his presence, by the justice who issued it, that is 
sufficient. 20 N. Y. 298. 

In all cases the return should be according to the fact, as 
the constable will be bound by his return, and liable for all 
damages a party may sustain by reason of a false return. 
For form of return, see List of Forms. 



CHAPTER VI. 
Trial. 

Demanding jury trial. — At the time when an 
issue of fact is joined either party may demand a 
trial by jury. The party demanding a trial by jury 
shall thereupon pay to the justice the statutory fees 
for the attendance of each person to be summoned 
and for the jurors to serve upon the trial, and also 
the fees to which the constable is entitled for noti- 
fying the persons to be drawn as jurors. The fees 
so deposited shall be delivered by the justice to 



24 Constables' Guide. 

the constable serving the venire, and by him shall 
be paid out as required by law. In default of a de- 
posit as aforesaid the justice shall proceed as if no 
demand for trial by jury had been made. Code Civ. 
Pro. § 2990. 

On demanding a jury trial, the party must, besides the fees 
of the justice, pay the constable if he requires it, 75 cents for 
service of the venire and 10 cents for each juror. 10 Abb. 
N. C. 488. 

Under section 2991 of the Code of Civil Pro- 
cedure, the justice openly draws twelve ballots from 
a box containing the names of persons who are re- 
turned as jurors of the town upon a list supplied 
the justice by the town clerk. 

Delivery, execution and return of venire. — The 

justice must insert the names of the jurors so 
drawn, in a venire, and deliver or cause it to be 
delivered to a constable of the county disinterested 
between the parties. The constable must, at least 
three days before the day therein stated, notify 
each of the persons whose names have been therein 
inserted, by reading it or stating the substance 
thereof to the person so served. But the service 
shall not be affected by the constable's failure, after 
diligent search, to find any of the persons so named. 
The constable must make his return upon the venire, 
certifying that he has so personally served it upon 
each of the jurors whose names are therein in- 
serted, or if any were not served, stating the reason 
for such omission. Any constable making a false 
return upon such venire is guilty of a misdemeanor. 
Code Civ. Pro. § 2993. 

In justice's court, a person notified to attend as a juror, 
is entitled to 25 cents for attending and serving, and to 10 
cents for attending to serve, where he is not sworn. Code 
'Civ. Pro. § 3326. And such juror is not obliged to render 
any service without the previous payment or tender of his 
iee therefor. Code Civ. Pro. § 3328. 



Teial. 25 

Ballots ; how prepared. — F or the purpose of pro- 
curing a jury to try the action, the justice must pre- 
pare, or cause to be prepared, ballots, uniform, as 
nearly as may be, in appearance, by writing the 
name of each person returned, who attends, upon a 
separate piece of paper. The constable, in the pres- 
ence of the justice, must roll up or fold each ballot 
in the same manner, as nearly as may be, so as to 
resemble the others, and so that the name is not 
visible. The ballots must be deposited in a box, 
or other convenient receptacle. Code Civ. Pro. 

§ 2994- 

Section 2996 of the Code of Civil Procedure pre- 
scribes that if a sufficient number of competent 
jurors do not attend, the justice shall issue an at- 
tachment against all defaulting jurors and pl,ace 
the same in the hands of the officer who summoned 
them. The jurors so attached and brought before 
the justice must pay, in addition to a fine, the offi- 
cer's fees together with all necessary expense in- 
curred by him in serving the attachment. 

New venire, etc. — If the constable, to whom the 
venire is delivered, does not return it as required 
thereby; or it is for any reason set aside the justice 
must proceed to draw another jury, in the manner 
prescribed in the foregoing sections, which shall 
be summoned in like manner as the first jury. If a 
full jury, drawn from those returned as prescribed 
in the foregoing sections cannot be obtained, the 
justice may direct the constable to require the at- 
tendance forthwith, or at such time as he may desig- 
nate, not longer than twenty-four hours after the 
issuing thereof, of such a number of talesmen, from 
the bystanders or from the town, qualified to serve 
as jurors, as he deems sufficient for the purpose; 
or in his discretion he may draw from the jury box, 
double the number of jurors required to complete 
the jury in the manner required by the foregoing 
sections, which shall be summoned in like manner 



26 Coi^STABLES^ Guide. 

as the first jury, and he shall continue to do so 
till a jury is obtained. Code Civ. Pro. § 2997. 

Constable to keep jury ; his oath. — After hearing 
the allegations and proofs, the jury must be kept 
together in a private and convenient place, under 
the charge of a constable, until they all agree upon 
their verdict; and, for that purpose, the justice shall 
administer to the constable the following^ oath : 
'' You swear in the presence of Almighty God, that 
you will, to the utmost of your ability, keep the per- 
sons sworn as jurors upon this trial together, in a 
private and convenient place, without any meat or 
drink except such as shall be ordered by me; that 
you will not suffer any communication to be made 
to them, orally or otherwise ; that you will not com- 
municate with them yourself, orally or otherwise, 
unless by my order, or to ask them whether they 
have agreed upon their verdict, until they are dis- 
charged; and that you will not, before they render 
their verdict, communicate to any person the state 
of their deliberations, or the verdict they have 
agreed upon.'' Code Civ. Pro. § 3006. 

Constable to keep jury in special proceeding; 
penalty. — A constable, who notified jurors to at- 
tend, must, when directed by the officer, before 
whom a special proceeding is pending, attend, and 
take charge of the jury. For a wilful neglect to 
obey such a direction, or for any misconduct, while 
attending the jury, by which a right or remedy of 
a party to the special proceeding may be impaired 
or prejudiced, he must be fined, by that officer, in 
a sum not exceeding twenty-five dollars. Code Ciy. 
Pro. § 1 196. 



Subpoena. 27 



CHAPTER VII. 
Subpoena. 

When justice may issue subpoena. — A justice of 
the peace may issue a subpoena, to compel a Vv^itness 
to attend, in the county where the justice resides, 
or in an adjoining county, but not otherwise, for 
the purpose of testifying upon the trial of an action, 
pending before himself, or before another justice. 
The subpoena may require the witness, except as 
otherwise expressly prescribed by law, to bring 
with him any book or paper, relating to the merits 
of the action. But a justice shall not issue a sub- 
poena to compel the attendance of a witness before 
another justice, unless the person applying therefor 
proves, by his own oath, or the oath of another per- 
son, that an action is actually pending before the 
other justice. Code Civ. Pro. § 2969. 

The subpoena must be entirely filled up, at the time when it 
is delivered to the officer, except that there may be a blank 
for the name of any or all of the witnesses. Code Civ. Pro. 
§ 3135. 

Subpoena; how served. — A subpoena may be 
served by a constable, or by any other person. It 
must be served by reading it, or stating its con- 
tents, to the witness, and by paying and tendering 
to him his lawful fee for one day's attendance as 
a witness. Where it is served by a constable, his 
return thereto, stating the manner of service and 
the sum paid, is presumptive evidence of the facts 
therein stated. Code Civ. Pro. § 2970. 

A witness in justice's court is entitled to 25 cents for each 
day's actual attendance. Code Civ. Pro. § 3327. And such 
witness is not obliged to render any service without the previ- 
ous payment or tender of his fee therefor. Code Civ. Pro. 
§ 3328. 

Warrant of attachment against defaulting witness. 

• — Under section 2971 of Code of Civ. Procedure^ 
where a person duly subpoenaed to attend before a 



28 Constables^ Guide. 

justice in an action has refused or neglected to at- 
tend, the justice may issue a warrant of attachment, 
directed generally to any constable of the county, 
for the purpose of compelling the attendance of 
the witness. 

Warrant, how executed ; fees thereupon. — Such 
a warrant of attachment must be executed in the 
same manner as an order of arrest. The fees of 
the justice and constable for issuing and serving 
it, must be paid by the person against whom it is 
issued, unless he shows a reasonable excuse, to the 
satisfaction of the justice, for his omission to at- 
tend ; in which case, the party procuring the war- 
rant must pay them. Code Civ. Pro. § 2972. 

When defaulting witness is in adjoining county. 

— Where the delinquent witness is within an ad- 
joining county, the constable, to w^hom the warrant 
of attachment is directed, may arrest the witness 
in that county, and bring him before the justice. 
The constable, while he is within the adjoining 
county for that purpose, has all the powers of a con- 
stable of that county, with respect to the warrant 
so issued to him. Code Civ. Pro. § 2973. 

Defaulting witness; how fined. — A person duly 
subpoenaed as a witness, who refuses to attend or 
to testify may be fined by the justice and if the fine 
is not imposed during the trial, the justice must, 
upon the application of the party subpoenaing the 
witness, issue a warrant, directed generally to any 
constable of the county, commanding him to arrest 
the defaulting witness and bring him before the 
justice to show cause why he should not be fined. 
Code Civ. Pro. §§ 2974, 2975. 

Execution thereupon. — If the whole amount of 
the fine and costs is not forthwith paid to the jus- 
tice, he must issue an execution, directed generally 



ExEcuTioisr. 29 

to any constable of the county, commanding the 
constable to collect the sum remaining unpaid, of 
the goods and chattels of the delinquent, within the 
county, and, for want thereof, to take him, and con- 
vey him to the jail of the county, there to remain 
until he pays that sum, not exceeding thirty days. 
Code Civ. Pro. § 2977. 

The money collected by virtue of the execution must be 
forthwith paid by the constable to the justice. Code Civ. 
Pro. § 2978. 

Powers of commissioners. — Where the commis- 
sion is executed within the State, the commissioner, 
or, if there are two or more, a majority of them, 
have the same power to issue a subpoena, to swear 
a witness, and to compel his attendance, that a jus- 
tice of the peace has, in an action pending before 
him. Code Civ. Pro. § 2987. 

The above section refers to the appointment, by a justice of 
the peace, of one or more persons to act as a commission to 
examine a witness not residing in the county. 



CHAPTER VIII. 
Execution. 

When justice may issue execution. — At any time 
within five years after entry of a judgment, the 
justice of the peace, who rendered it, being in office, 
may issue an execution thereupon, unless it has 
been docketed in the county clerk's office. Code 
Civ. Pro. § 3024. 

If the judgment has been docketed in the county clerk's 

office, the execution has to be issued by the county clerk and 

is directed to the sheriff. Neither an original execution nor a 

renewal of such execution can be issued after five years from 

# the entry of judgment. 

General requisites of execution. — An execution, 
issued by a justice, must be directed generally to 



30 Constables' Guide. 

any constable of the same county. It must intel- 
ligibly describe the judgment, stating the names 
of the parties in whose favor, and against whom, 
the time when, and the name of the justice by 
whom the judgment was rendered; and it must be 
made returnable to the justice, within sixty days 
after date. Code Civ. Pro. § 3025. 

Execution upon judgment for money. — An exe- 
cution, issued upon a judgment for a sum of money 
must specify, in the body thereof, the sum recov- 
ered, and the sum actually due upon the judgment 
at the date of the execution ; and, except in a case 
where special provision is otherwise made by law, 
it must, substantially, require the constable to 
satisfy the judgment, together with his fees, out of 
the personal property of the judgment debtor within 
the county, not exempt from levy and sale by virtue 
of an execution ; and to bring the money before 
the justice, by the return day of the execution, to be 
rendered by the justice to the party who recovered 
the judgment. In a proper case the execution must 
also command the constable, if sufficient personal 
property cannot be found to satisfy the judgment, 
to arrest the judgment debtor, and to convey him 
to the jail of the county, there to remain until he 
pays the judgment, or is discharged according to 
law. Code Civ. Pro. § 3026. 

Execution against joint debtors. — Where an action 
is brought against two or more persons, jointly indebted upon 
contract, and the summons is served upon one or more, but 
not upon all of them, if the plaintiff recovers judgment, it 
must be entered against all. Code Civ. Pro. § 3020. An 
execution upon such a judgment must be issued, in form, 
against all the defendants; but the justice must indorse there- 
upon a direction to the constable, containing the name of each 
defendant who was not summoned, and stating that the exe- 
cution shall not be enforced against the person nor the indi- 
vidual property of a defendant, whose name is so indorsed 
thereupon, but that it may be collected out of the personal 
property owned by such defendants jointly with all those who 
were served with the summons, or with any of them; and it 



ExEcuTioisr. 31 

may be collected out of the individual property of any who 
were actually served with the summons. Code Civ. Pro. 
§§ 1934, 1935. 

Renewal of execution. — After the return, wholly 
or partly unsatisfied, of an execution, issued by a 
justice of the peace, he may, from time to time, 
within five years after the judgment was rendered, 
issue a new execution or renew the former execu- 
tion. An execution is renewed by a written indorse- 
ment thereupon to that eflfect, signed by the justice, 
and dated upon the day when it is made. If part 
of the execution has been satisfied, the indorsement 
must state the sum remaining due. Each indorse- 
ment renews the execution for sixty days from the 
date thereof. A justice whose term of office has 
expired may thus issue or renew an execution. Code 
Civ. Pro. § 3027. 

A renewal for thirty days is void. 84 Hun, 166. An execu- 
tion may be renewed without a return of " no goods '' being 
endorsed on it. 12 Johns. 320. And it may be renewed with- 
out any written return, and after the return day, and it may 
be done repeatedly. 1 Wend. 551, 11 N. Y. 281. The con- 
stable may alter the date, if directed by the justice. 10 
Johns. 405. 

Property exempt from execution. — The same 
personal property is exempt from levy and sale, by 
virtue of an execution issued by a justice of the 
peace, which is exempt from levy and sale, by vir- 
tue of an execution issued out of the Supreme Court, 
and in the like cases, and under the same circum- 
stances, as prescribed in sections 1389, 1390, 1391, 
1392, 1393, and 1394 of this act, and the other special 
provisions of law, relating to such an exemption. 
Code Civ. Pro. § 3028. 

What personal property is exempt, wlien oivned by 
a householder. — The following personal property, when 
owned by a householder, is exempt from levy and sale by 
virtue of an execution; and each movable article thereof con- 
tinues to be so exempt, while the family, or any of them, 
are removing from one residence to another: 

1. All spinning wheels, weaving looms, and stoves, put up, 



32 Constables' Guide. 

or kept for use, in a dwelling house ; and one sewing macliine, 
with its appurtenances. 

2. The family bible, family pictures, and school-books, used 
by or in the family; and other books, not exceeding in value 
fifty dollars, kept and used as part of the family library. 

3. A seat or pew, occupied by the judgment debtor, or the 
family, in a place of public worship. 

4. Ten sheep, with their fleeces, and the yarn or cloth manu- 
factured therefrom; one cow; two swine; the necessary food 
for those animals; all necessary meat, fish, flour, groceries 
and vegetables, actually provided for family use; and neces- 
sary fuel, oil, and candles, for the use of the family for sixty 
days. 

5. All wearing apparel, beds, bedsteads, and bedding, neces- 
sary for the judgment debtor and the family; all necessary 
cooking utensils; one table: six chairs; six knives; six forks; 
six spoons; six plates; six tea cups; six saucers; one sugar 
dish; one milk pot; one tea pot; one crane and its append- 
ages; one pair of andirons; one coal scuttle; one shovel; 
one pair of tongs; one lamp, and one candlestick. 

6. The tools and implements of a mechanic, necessary to the 
carrving on of his trade, not exceeding in value twenty-five 
dollars. Code Civ. Pro. § 1390. 

Additional personal property exempt in certain 
cases. — In addition to the exemptions, allowed by the last 
section, necessary household furniture, working tools and 
team, professional instruments, furniture and library, not ex- 
ceeding in value two hundred and fifty dollars, together with 
the necessary food for the team, for ninety days, are exempt 
from levy and sale by virtue of an execution, when owned by a 
person, being a householder, or having a family for which 
he provides, except where the execution is issued upon a judg- 
ment, recovered wholly upon one or more demands, either 
for work performed in the family as a domestic or for the 
purchase money, of one or more articles, exempt as prescribed 
in this or the last section. Where a judgment has been re- 
covered wholly for necessaries sold, or work performed in a 
family as a domestic, or for services rendered for salary 
owing to an employe of the judgment debtor, and where an 
execution issued upon said judgment has been returned wholly 
or partly unsatisfied and where any wages, debts, earnings, 
salary, income from trust funds or profits are due and owing 
to the judgment debtor or shall thereafter become due and 
owing to him, to an amount exceeding twenty dollars per 
week and where no execution issued as hereafter provided in 
this section is unsatisfied and outstanding against said judg- 
ment debtor, the judgment creditor may apply to the court 
in which said judgment was recovered and upon satisfactory 
proof of such facts by affidavit or otherwise, the court, if a 
court not of record, a judge or justice thereof, must issue, 



ExEcuTioisr. 33 

or if a court of record, a judge or justice, must grant an 
order directing that an execution issue against the wages, 
debt, earnings, salary, income from trust funds or profits of 
said judgment debtor, and on presentation of such execution 
by the officer to whom delivered for collection to the person 
or persons from whom such wages, debts, earnings, salary, 
income from trust funds or profits are due and owing, or may 
thereafter become due and owing to the judgment debtor, said 
execution shall become a lien and a continuing levy upon the 
wages, earnings, debts, salary, income from trust funds or 
profits due or to become due to said judgment debtor to the 
amount specified therein which shall not exceed ten per centum 
thereof, and said levy shall be a continuing levy until said 
execution and the expenses thereof are fully satisfied and paid 
or until modified as hereinafter provided. It shall be the 
duty of any person or corporation to whom said execution 
shall be presented, and who shall at such time be indebted 
to the judgment debtor named in such execution, or who 
shall become indebted to such judgment debtor in the future, 
and while said execution shall remain a lien upon said in- 
debtedness to pay over to the officer presenting the same, 
such amount of such indebtedness as such execution shall 
prescribe until said execution shall be wholly satisfied and 
such payment shall be a bar to any action therefor by any 
such judgment debtor. If such person or corporation to wTiom 
said execution shall be presented shall fail, or refuse to pay 
over to said officer presenting said execution, the percentage 
of said indebtedness, he shall be liable to an action therefor 
by the judgment creditor named in such execution, and the 
amount so recovered by such judgment creditor shall be ap- 
plied towards the payment of said execution. Either party 
may apply at any time to the court from which such execu- 
tion shall issue, or to any judge or justice issuing the same, 
or to the county judge of the county, and in any county 
where there is no county judge, to any justice of the city 
court upon such notice to the other party as such court, judge, 
or justice shall direct for a modification of said execution, 
and upon such hearing the said court, judge or justice may 
make such modification of the said execution as shall be 
deemed just, and such execution as so modified shall continue 
in full force and effect until fully paid and satisfied, or until 
further modified as herein provided. Code Civ. Pro. J 1391. 
Property exempted from levy and sale. — A judgment 
debtor has no privilege of exemption except such as the 
statute specifically allows. 20 Civ. Proc. R. 402. The claim 
that property is exempt is a claim personal to the defendant 
in the execution and he only can avail himself of the privilege. 
5 Abb. N. S. 253. And the exemption must be claimed before 
the property is sold on execution or it will be waived. 69 App. 



34 Constables' Guide. 

Div. 438. The exemption laws extend to nonresidents. 2 
C. E. 70. 

A man who is not a householder and has no family is not 
entitled to any exemption. 39 St. Rep. 194. A householder 
is the master of a household and a household is a family 
living together; not necessarily a wife and children, but a 
family small or large for which the debtor provides. The 
statute is entitled to a liberal construction wUh the view 
to effectuate its purpose, which is the protection of families 
against being deprived of the necessaries for support by the 
process of execution. 46 Hun, 48. The word " householder " 
means the head of the family or the person who has the 
charge of and provides for the family, and does not apply 
to the subordinate members or inmates of the household. 19 
Wend. 475. One who rents a house and keeps boarders and 
servants is a householder, although he has no wife or children 
for whom he provides. 14 How. 436. 

A person does not lose the character of householder by 
temporarily ceasing to keep house and storing his property 
with a view to return to it again and renew housekeeping. 
51 How. 45. 

A man who is not a householder and has no family for 
which he provides wholly or partly is not entitled to any 
exemption. 39 St. Rep. 194. 

An officer is not liable as a trespasser for levying upon 
exempt property unless he knew it was exempt or a claim to 
exemption was made upon him on behalf of the debtor. 11 
Daly, 157. 

A constable need not consult the judgment debtor as to 
what part of his property is exempt before a levy thereon, 
but he is justified in taking and selling the debtor's property, 
though exempt, if not informed of the exemption, and, unless 
the exemption is claimed within a reasonable time after notice 
of the levy. 4 Lans. 263. 

A constable upon accepting a bond of indemnity is bound to 
sell the property, whether exempt or not, upon being so di- 
rected at the time of executing the bond. 5 Abb. N. S. 253. 

"Wliat is exempt. — If a householder own a cow and ten 
sheep, so much hay as will be necessary for their food during 
the next foddering season, after harvesting the hay, is exempt. 
Hill & D. Supp. 87. 

The fleeces, or the yarn or cloth manufactured from the 
fleeces of ten sheep, are exempt while in the hands of the 
householder, whether he be or be not the owner of the sheep. 
11 Wend. 44. 

That part of the statute which exempts necessary pork, 
beef, flsh, etc., provided for family use, was intended to pro- 
tect such a quantity of the specified articles as would be 
necessary for the family imtil the next annual period for 
laying up such provisions. What is necessary furniture is to 



Execution. 35 

be determined relatively, by reference to the circumstances 
of the case. The debtor may retain articles which he has had 
in common use in his family, and which were reasonable and 
proper for him and them in their station in life. 1 Sand. 724. 

The surgical instruments of a physician are exempt as his 
tools. 3 Abb. 466. 

Where books claimed to be exempt exceed in value the 
sum of $250, even though considered to be the tools and 
implements of their owner, they are not exempt except up 
to that amount. 76 Hun, 408. 

A watch is not exempt ordinarily, but may be in cases in 
which the nature of a man's business is such that the time- 
piece is necessary to the transaction of business from which 
he obtains a livelihood and where he uses his watch in the 
business itself. In such case his watch may properly be in- 
cluded within the term " working tools.'^ 17 How. 80. 

A machine, such as a thrashing machine, a horse power 
or engine, is not exempted from levy and sale under execu- 
tion. 34 Barb. 364. 

The term '' team '^ may apply to one or more animals and, 
whatever number may compose it, if within the limit of 
value, it will be exempt. 31 N. Y. 648. 

The wagon or other vehicle to which the horse is ordinarily 
attached for business purposes, together with the harness on 
the horse, are equally exempt with the horse because em- 
braced in the description of a team. 32 Barb. 290, 9 Hun, 
43. 

To entitle a person to have his team exempt he need not 
have the sole right of property therein. If he is only a part 
owner, in common with another, he may claim that exemption. 
25 Barb. 52. 

Military pay, rewards, etc., are exempt from execution and 
other legal proceedings. Code Civ. Pro. § 1393. And when 
the receipts from a pension can be directly traced to the pur- 
chase of property necessary or convenient for the support and 
maintenance of the pensioner and his family, such property 
is exempt. But it seems that when pension moneys have 
been embarked in business and mingled with other funds so 
as to be incapable of identification or separation, the pen- 
sioner loses the benefit of the exemption. 119 IST. Y. 550. 

Right of action for taking;, etc., exempt property. — 
A right of action to recover damages, or damages awarded 
by a judgment, for taking or injuring personal property, 
exempt by law from levy and sale by virtue of an execution are 
exempt, for one year after the collection thereof, from levy 
and sale, by virtue of an execution, and from seizure in any 
other legal proceeding. Code Civ. Pro. § 1394. 



36 Constables' Guide. 

Woman entitled to same exemption as a house- 
holder. — Where the judgment debtor is a woman, 
she is entitled to the same exemptions, from levy 
and sale by virtue of an execution, subject to the 
same exceptions, as prescribed in sections 1390 and 
1391, in the case of a householder. Code Civ. Pro. 
§ 1392. 

A woman need not be a householder and her property has 
the same exemptions as a householder's. 39 St. Rep. 194. 

Indorsement of levy ; notice of sale. — A constable, 
who takes personal property into his custody, by 
virtue of an execution, must indorse upon the exe- 
cution the time of levying upon it. He must im- 
mediately post conspicuously, in at least three pub- 
lic places of the city or town, in which the prop- 
erty was taken, written or printed notices, signed by 
him, describing the property, and specifying the 
place, within the same city or town, where, and the 
time, not less than six days after the posting, when, 
it will be exposed for sale. Code Civ. Pro. § 3029. 

Priority of execution does not depend on the time of de- 
livering the executions, but upon the time of levy. 13 Johns. 
249. Where property levied upon is left in possession of an- 
other person, the constable's right to possession is lost if he 
does not claim and sell it before the execution runs out. 
9 Johns. 361. 

The constable may summon a jury to try a question of dis- 
puted title. 7 Wend. 236; 10 Johns. 98. 

Where a sheriff has levied on property and takes possession 
of it, a constable with a subsequent execution cannot levy 
and sell subject to the sheriff's le^^^ 17 Hun, 30. Where a 
constable levies on personal property in one town, but posts 
notices in and sells in another town, the sale is void. 39 St. 
Rep. 403. 

Levy; hoiv made on personal property. — To constitute 
a valid levy the officer must enter on the premises where the 
goods are. The property must be in the view of the officer 
and under his control. He must take possession of them if 
that be practicable. If he does not remove them he must 
openly assert his title to them by virtue of his execution and 
make an oral declaration that a levy is intended and that 
the officer claims to hold the goods under said levy. It is 
proper but not necessary that the officer make an inventory 



Executioint. 37 

of the property. If an inventory is not made, at least a memo- 
randum of the levy shonld be made at the time. It is not 
essential to the validity of the levj that the officer take actual 
possession of the goods, or that he remove them from the 
custody of the debtor, but if he leaves the <?oods in the pos- 
session of the debtor until the sale, it is at the risk of the 
officer. It is to the advantage of the officer, in case iJie goods 
are so left, to obtain from the judgment debtor security of 
some kind for the delivery of the propertv at the time of 
the sale. 19 Wend. 495, 29 K Y. 485, 31 K Y. 102. 

It may be safely laid down that the officer must have the 
goods under his view and subject to his immediate disposition 
and control to constitute a good levy^ a declaration of the 
levy on goods locked up and not within the view of the officer 
is no levy. 31 K Y. 102. 

Where property which has been levied on has been removed 
out of the county, the officer may follow and obtain possession 
peaceably, if he can, and rely upon his levy as a defense 
and he may use necessary force to defend his possession; but 
he cannot emplov force to obtain it, having no power out of 
his county. 54 k. Y. 153. 

After an officer has levied upon goods as the property of 
defendant in the execution, he may, on discovering that the 
goods levied on do not belong to defendant, give up the levy. 
35 N. Y. 482. A tender of the full amount due on the execu- 
tion discharges the lien and the officer has no right to pro- 
ceed with the levy and sale. 65 N. Y. 314. 

The taking of a note from the judgTQent debtor by the 
officer does not discharge the execution nor justify the officer 
in returning it satisfied. 1 Cow. 46. 

The officer may require indemnity before levying on property 
not in the possession of the execution debtor. 18 N. Y. 115. 
And he may require such indemnity even after levy and sale. 
1 Abb. 74. It is the officer's duty to levy upon property 
enough to satisfy the judofment and his fees, but he cannot 
be required to predict with unfailing accuracy the exact pro- 
ceeds of a sale at auction. He must act with good judgment 
and in good faith toward all concerned. 66 Barb. 272. 

Sale on execution, etc. ; when and how conducted. 

— A sale of real or personal property, by virtue of 
an execution, or pursuant to the directions con- 
tained in a judgment or order, must be made at 
public auction, between the hour of nine o'clock in 
the morning and sunset. The constable to whom 
an execution is issued shall at any time before the 
sale of the personal property levied on by him, on 
the written request of any person who is a creditor 



38 Constables^ Guide. 

of the person against whom the writ was issued 
under which the constable levied upon the property, 
exhibit to such creditor the personal property so 
levied upon under said writ and permit an inspec- 
tion thereof by such creditor or his agent. Code 
Civ. Pro. § 1384. 

Purchases on such sales, by certain officers, pro- 
hibited. — The constable, to whom an execution is 
directed, holding an execution, and conducting a 
sale of property by virtue thereof, shall not, directly 
or indirectly, purchase any of the property at the 
sale. A purchase made by him, or to his use, is 
void. Code Civ. Pro. § 1387. 

Personal property bound by execution. — The 

goods and chattels of a judgment debtor, not ex- 
empt, by express provision of law, from levy and 
sale by virtue of an execution, and his other per- 
sonal property, which is expressly declared by law, 
to be subject to levy by virtue of an execution, are, 
when situated within the jurisdiction of the officer, 
to whom an execution against property is delivered, 
bound by the execution, from the time of the de- 
livery thereof to the proper officer, to be executed ; 
but not before. Code Civ. Pro. § 1405. 

Interest of bailor in goods pledged may be sold. — 

The interest of the judgment debtor in personal property, sub- 
ject to levy, lawfully pledged, for the payment of money, or 
the performance of a contract or agreement, may be sold, in 
the hands of the pledgee, by virtue of an execution against 
property. The purchaser at the sale acquires all the right 
and interest of the judgment debtor, and is entitled to the 
possession of the property, on complying with the terms and 
conditions upon which the judgment debtor could obtain pos^ 
session thereof. This section does not apply to property, of 
which the judgment debtor is unconditionally entitled to the 
possession. Code Civ. Pro. § 1412. 

Sale of personal property ; how made. — Personal 
property must be offered for sale, in such lots and 
parcels, as are calculated to bring the highest price. 



Execution. 39 

Except where the officer is expressly authorized, 
by this article, to sell property not in his possession, 
personal property shall not be offered for sale, un- 
less it is present, and within the view of those at- 
tending the sale. Code Civ. Pro. § 1428. 

Within a reasonable time after the levy the officer should 
sell the goods seized. 5 Cow. 390. The death of the execu- 
tion debtor after the issuing of execution does not prevent a 
sale. 1 Lans. 405. It is the officer's right to postpone the 
sale from time to time, but he cannot for his own gain bind 
himself by contract not to sell for such a period as would 
prevent him from obeying the command of the execution. 62 
Barb. 420. 

An officer can make a valid sale only for cash. 19 Hun, 634. 

It is his duty in making the sale on execution to demand 
payment for property sold; if not paid he must then and 
there avoid the sale and resell or postpone sale, giving notice 
of the resale and postponement. If he closes the sale and 
gives credit or takes anything but money in payment, and 
delivers the property to the purchaser, the officer takes the 
risk, and what he receives must be treated as money and 
accounted for by him as such. 90 IST. Y. 208. 

Property must be pointed out to the bidders and specifically 
designated and there must be no doubt as to the identity of 
the property sold. 4 Barb. 484. Any violation of the above 
section renders the sale void. 14 Johns. 352. 

Objection to the regularity of a sale under an execution 
cannot be raised by strangers or persons not interested in the 
sale. 5 Barb. 565. But objection may be made by a pur- 
chaser at sale. 15 Abb. 259. Or by the judgment creditor. 
13 How. 555. 

If the parties to the action satisfy the judgment, the officer 
cannot sell the property of the judgment debtor to collect his 
fees. He must look to the judgment creditor for them. 17 
Hun, 19. 

Return of execution. — The constable must re- 
turn the execution to the justice, and pay to him the 
amount of the judgment, with interest, or so^ much 
thereof as he has collected; returning the surplus, 
if any, to the person from whose property it was 
collected. Code Civ. Pro. § 3031. 

Where an execution delivered to a constable is returned by 
him without the endorsement of any levy thereon, it is equiva- 
lent to returning the execution unsatisfied. The provisions 
relating to the mode of returning an execution issued to a 



40 CO^NTSTABLES' GuiDE. 

sheriff have no application to an execution issued out of a 
justice's court to a constable. A constable makes sufficient 
return by the manual delivery of the execution to the justice 
who issued it, and the payment to him of the amount of the 
judgment or so much thereof as he has collected. No return 
need be indorsed by him upon the execution, the only indorse- 
ment required by statute being in case he has taken personal 
property into his custody under the execution, in which case 
he must indorse upon it the date of making the levy. The 
record of the return is required to be made by the justice. 
16 Civ. Proc. R. 362. 

Execution against the person; imprisonment of 
judgment debtor. — For want of sufficient personal 
property, whereon to levy, the constable must, if 
the execution requires it, arrest the judgment 
debtor, and convey him to the jail of the county. 
The keeper of the jail must thereupon keep the 
judgment debtor in custody, in all respects as if 
the execution was issued out of the Supreme Court, 
until the judgment and the fees of the constable are 
paid; or until the judgment debtor is thence dis- 
charged, in due course of law. Code Civ. Pro. 
§ 3032. 

The constable is a trespasser if he arrests a party when 
sufficient personal property might be found with reasonable 
diligence. 4 Wend. 639. 

Action against constable for not returning execu- 
tion. — If a constable fails to return an execution 
within five days after the return day thereof, the 
party, in whose favor it was issued, may recover, 
in an action against the constable the amount of 
the execution, if it was issued upon a judgment for 
a sum of money ; or if it was for the delivery of the 
possession of a chattel, the value of the chattel, as 
specified in the judgment, together with the dam- 
ages and costs awarded thereby ; and, in either case, 
with interest from the time when the judgment was 
rendered. Code Civ. Pro. § 3039. 



Execution. 41 

Constable not to act under execution after return 
day. — A constable shall not levy upon or sell prop- 
erty, or arrest a defendant, or take possession of a 
chattel, by virtue of an execution, after the time 
limited therein for its return, unless the execution 
has been renewed; nor shall he do any act under 
a renewed execution, after the expiration of the time 
for which it has been renewed. Code Civ. Pro. 
§ 3040. 

Action against constable for money collected. — 
Where money, collected by a constable upon an 
execution is not paid over by him according to law, 
any person entitled thereto may maintain an ac- 
tion in his own name, upon the instrument of se- 
curity given by the constable and his sureties ; and 
may recover therein the sum so collected, with in- 
terest from the time when it was collected. Code 
Civ. Pro. § 3041. 

The constable does not have to turn over surplus money to 
the judgment debtor before the return day. 15 How. 572. 

Duty of constable whose term of office has ex- 
pired.^ — A constable, to whom an execution is de- 
livered, whose term of office expires on or before the 
return day thereof, must proceed thereupon in the 
same manner, as if his term of office had not ex- 
pired; and he and his sureties are liable for any 
neglect of duty, with respect to the execution ; or 
for money collected thereunder, or for damages sus- 
tained by reason of any act done by the constable, 
touching the execution, in the same manner, and 
to the same extent, as if his term of office had not 
expired. Code Civ. Pro. § 3042. 

Pending an appeal, execution may be stayed by 
the service of a copy of proper undertaking, which 
has been filed with the justice, upon the officer hold- 
ing the execution. Code Civ. Pro. § 3051. 



42 Constables^ Guide. 

CHAPTER IX. 

Order of Arrest. 

At the time when the summons is issued, the jus- 
tice who issues the summons, upon the application 
of the plaintiff, in a proper case, must grant an 
order for the arrest of the defendant. Code Civ. 
Pro. § 2894. 

Its contents. — The order must be subscribed by 
the justice and indorsed upon or attached to the 
summons. It must briefly recite the ground of ar- 
rest; and it must direct the constable, who serves 
the summons to arrest the defendant; to bring him 
forthwith before the justice ; and to notify the plain- 
tiff of the arrest, if he can do so with reasonable 
diligence. Code Civ. Pro. § 2897. 

Duty of constable. — The constable must, at the 
time of serving the summons, execute the order oT 
arrest, by arresting the defendant, and taking him 
forthwith before the justice. If the justice is ab- 
sent, or unable to try the action, the constable must 
forthwith take the defendant before another justice 
of the same town or city ; who must take cognizance 
of the action, and proceed therein, as if the suni- 
mons had been issued, and the order of arrest had 
been granted by him. Code Civ. Pro. § 2898. 

Constable lias no right to take security for defendant's ap- 
pearance, but he must take him forthwith before the justice. 
5 Wend. 61. But, where an officer, after he had arrested a 
defendant, went with him two or three miles out of the direct 
route to the jail in order that the defendant might obtain 
the means of settling the execution; and also went with him 
that distance to the prisoner's house, in order that he might 
get his necessary apparel and see his wife before he went 
to jail, it was held not to be an escape, it being no more than 
a reasonable indulgence, from laudable and compassionate 
motives. 10 Johns. 420. It has also been held that he may 
detain the prisoner over night, where he has been arrested 
too late at night to take him before the justice and give the 
pl^,intiff reasonable notice. 



Order of Ai^eest. 43 

A person duly and in good faith subpoenaed or ordered to 
attend, for the purpose of being examined, in a ease inhere 
his attendance may lawfully be enforced by attachment, or 
by commitment, is privileged from arrest in a civil action or 
special proceeding, while going to, remaining at, and return- 
ing from, the place where he is required to attend. Code 
Civ. Pro. § 860. 

An arrest, made contrary to the provisions of the last sec- 
tion, is absolutely void, and is a contempt of the court, if 
any, from which the subpoena was issued, or by which the 
witness was directed to attend. An action may be maintained, 
by the person arrested, against the officer or other person 
making such arrest, in which the plaintiff is entitled to re- 
cover treble damages. A similar action may also be main- 
tained, in a like case, by the party in whose behalf the wit- 
ness was subpoenaed, or the order procured, to recover the 
damages sustained by him, in consequence of the arrest. Code 
Civ. Pro. § 863. 

But an officer is not so liable, unless the person claiming an 
exemption from arrest, makes, if required by the officer, an 
affidavit, to the effect that he was legally subpoenaed or 
ordered to attend, and that he was not so subpoenaed or 
ordered by his own procurement, with the intent of avoiding 
arrest. In his affidavit, he must specify the court or officer, 
the place of attendance, and the cause in which he was so 
subpoenaed or ordered. The affidavit may be taken before the 
officer arresting him, and exonerates the officer from liability 
for not making the arrest. Code Civ. Pro. § 864. 

Return; when plaintiff notified must appear. — 

The constable, executing the order of arrest, must 
forthwith deliver to the justice the order, and a 
written return thereto, under his hand, stating the 
manner in which he has executed it, and either that 
he has notified the plaintiff, or that he could not do 
so, with reasonable diligence. Code Civ. Pro. 
§ 2899- 

Constable to keep defendant in custody. — The 

constable executing the order, or another coiistable, 
by direction of the justice, must keep the defend- 
^ant in custody, until he is discharged by the order 
of the justice, or judgment is rendered in his favor; 
but the detention shall not, in any case, exceed 
twelve hours from the time when the defendant is 
brought before the justice; unless, within that time. 



44 Co]srsTABLEs' Guide. 

a venire is issued, or the trial of the action is com- 
menced, or unless either is delayed with the express 
assent of the defendant. Code Civ. Pro. § 2900. 

Proceedings upon transfer. — Where an order is 
made to transfer a case to another justice, the con- 
stable must forthwith take it and all other papers in 
the action, with the body of the defendant, if he is 
under arrest, before the justice named in the order. 
The plaintiff or petitioner must forthwith appear 
before that justice, who must take cognizance of the 
action or special proceeding, and must proceed 
therein as if it had been commenced before him. 
Costs, recovered in the action or special proceed- 
ing, include the fees allowed by law, for services 
performed by the constable and the justice, before 
the transfer, together with the fees allowed by law, 
for the proceedings before the justice to whom the 
cause is transferred. Code Civ. Pro. § 3152. 



CHAPTER X. 

Warrant of Attachment. 

In an action brought before a justice of the 
peace, a warrant of attachment against the prop- 
erty of one or more defendants must be granted by 
the justice in a proper case, upon the application 
of the plaintiff. Code Civ. Pro. § 2905. 

Warrant; form and contents thereof. — The war- 
rant must be granted by the justice who issues the 
summons, at the time when the summons is issued; 
and it must be indorsed thereupon, or annexed 
thereto. It must be subscribed by the justice, and 
must briefly recite the ground of the attachment. 
It must require the constable, to whom the sum- 
mons is delivered, to attach, on or before a day 
specified therein, which must be at least six days 



Warra^n^t of Attachmeistt. 45 

before the return day of the summons, and safely 
to keep, as much of the defendant's goods and chat- 
tels, within his county, as will satisfy the plaintiff's 
demand, with the costs and expenses, and to make 
return of his proceedings thereon to the justice, 
at the time when the summons is returnable. The 
amount of the plaintiff's demand must be specified 
in the warrant, as stated in the affidavit. Code Civ. 
Pro. § 2907. 

Warrant ; how executed ; perishable property may 
be sold. — The constable to whom the warrant of 

attachment is delivered, must execute it at least six 
days before the return day of the summons, by levy- 
ing upon and taking into his custody so much of 
the goods and chattels of the defendant, not exempt 
from levy and sale by virtue of an execution, in- 
cluding money and bank notes, which he finds 
within his county, as will satisfy the plaintiff's de- 
mand, with the costs and expenses. He must safely 
keep the property attached, to be disposed of as 
prescribed in this article, and must immediately 
make an inventory thereof, stating therein the esti- 
mated value of each item or article. Provided, how- 
ever, if property attached is perishable, the justice 
who issued the warrant may, by an order made and 
entered upon his docket, and Avith or without notice, 
as the urgency of the case in his opinion req^uires, 
direct the constable to sell such property at public 
auction, and thereupon the constable must sell it 
accordingly. A certified copy of the order directing 
the sale shall be delivered to such constable. Such 
order must prescribe the time and place of the sale, 
and notice thereof must be given in such manner 
and for such time as directed by the order. The 
constable shall retain in his hands the proceeds of 
such sale until the final determination of the ac- 
tion. Code Civ. Pro. § 2909. 



46 Constables'' Guide. 

Service of summons and warrant upon defendant. 

— The constable must, immediately after making 
the inventory, and at least six days before the re- 
turn day of the summons, serve the summons, to- 
gether with the warrant of attachment and inven- 
tory, upon the defendant, by delivering to him per- 
sonally a copy of each, if he can, with reasonable 
diligence, be found within the county ; or, if he can- 
not be so found, by leaving a copy of each, certified 
by the constable, at the last place of residence of 
the defendant in the county, with a person 
of suitable age and discretion ; or, if such a person 
cannot be found there, by posting it on the outer 
door, and also depositing another copy in the near- 
est post office, inclosed in a sealed postpaid wrap- 
per, directed to the defendant at his residence ; or, 
if the defendant has no place of residence in the 
county, by delivering it to the person in whose 
possession the property attached is found. Code 
Civ. Pro. § 2910. 

Undertaking by defendant; re-delivery to him. — 

The defendant, or his attorney or agent in his be- 
half may, at any time before judgment is rendered 
in the action, execute and deliver to the constable 
an undertaking to the plaintiff, in a sum specified 
therein, at least twice the value of the property at- 
tached, as stated in the inventory; with one or 
more sureties, approved by the constable, or by the 
justice who issued the warrant; and to the effect 
that, if judgment is rendered against the defend- 
ant, and an execution is issued thereupon, within 
six months after the giving of the undertaking, the 
property attached shall be produced to satisfy the 
execution. Thereupon the constable must re-de- 
liver the property to the defendant. Code Civ. Pro. 
§2911. 

Claim by third person; bond and delivery there- 
upon. — If a person, not a party to the action, claims 



Wareaxt of Attachment. 47 

any property attached, which is not reclaimed by 
the defendant, as prescribed in the last section, he 
may, at any time after the seizure, and before exe- 
cution is issued upon a judgment rendered in the 
action, execute, and file with the justice, a bond to 
the plaintiff, with one or more sureties, approved 
by the constable or by the justice; in a penalty at 
least twice the value of the property claimed; and 
conditioned that, in an action upon the bond, to be 
commenced within three months thereafter, the 
claimant will establish that he was the general 
owner of the property claimed, at the time of the 
seizure ; or, if he fails so to do, that he will pay to 
the plaintiff the value thereof, wath interest. The 
constable must thereupon deliver the property 
claimed to the claimant. Code Civ. Pro. § 2912. 

Return of warrant. — The constable executing the 
warrant of attachment must, at the time when and 
place where it is returnable, make a return thereto, 
under his hand, stating all his proceedings there- 
upon. He must deliver to the justice, with the re- 
turn, each bond or undertaking delivered to him, 
pursuant to any of the foregoing provisions of this 
article, and a certified copy of the inventory of the 
property attached. The return must state the man- 
ner in which the warrant and inventory were served, 
and, if they were served otherwise than by deliver- 
ing a copy thereof to the defendant personally, the 
reason therefor, and the name of the person to 
whom the copy was delivered, unless his name is 
unknown to the constable; in which case, the re- 
turn must describe him so as to identify him, as 
nearly as may be. Code Civ. Pro. § 2915. ^ 

A return of a le^^^ without stating that a copy of the altach- 
inent was served, is not sufficient. 16 Johns. 121. 

The constable's return should show a specific compliance 
with the statute. A return that the copy was served by 
leaving at defendant's last place of residence, should state 
the name of the place specifically, or at least state that it 
was in the county. 21 How. 429. And in such a case the con- 



48 CoisrsTABLEs'' Guide. 

stable's return must also state that the copies so left were 
certified by the constable to be true copies of the original 
summons, warrant and inventory. 15 App. Div. 227. 

Where judgment is rendered in a case where the 
summons was not personally served upon the de- 
fendant, the execution issued upon it must require 
the constable to satisfy it out of the property so 
attached, without containing a direction to satisfy 
it out of any other property. Code Civ. Pro. § 2918. 



CHAPTER XI. 

Replevin. 

When action for a chattel may be brought. — An 

action to recover a chattel, with or without dam- 
ages for the wrongful taking, withholding, or de- 
tention thereof, can be brought before a justice of 
the peace of the county in which the chattel is 
found, in a case where the value of the chattel or 
of all the chattels, does not exceed $200. Code Ctv. 
Pro. § 2919. 

Plaintiff may procure replevin; affidavit and un- 
dertaking. — The plaintiff may, at the same time 
when the summons is issued, but not afterwards, 
require the chattel to be replevied, as prescribed in 
this article. For that purpose, he must deliver to 
the justice a proper affidavit and undertaking. Code 
Civ. Pro. § 2920. 

Requisition. — Upon receiving the affidavit and 
undertaking, the justice must indorse upon or at- 
tach to the affidavit a written requisition, subscribed 
by him, requiring the constable, to whom the sum- 
mons is delivered, to replevy the property described 
in the affidavit, on or before a day specified in the 
requisition, which must be at least six days before 
the return day of the summons. The affidavit and 



Replevin. 49 

requisition must be delivered to the constable, with 
the summons. Code Civ. Pro. § 2921. 

Requisition, how executed; service of summons, 

etc. — The constable must execute the requisition, 
as a sheriff is required to execute a requisition, in 
an action brought to recover a chattel, as prescribed 
in sections 1700, 1701, and 1702 of this act; except 
that he must serve the summons, affidavit, and 
requisition within the time and in the manner pre- 
scribed by section 2910 of this act, for the service 
of a summons, warrant of attachment, andjiiven- 
tory. Code Civ. Pro. § 2922. 

If any chattel, described in the affidavit, is found in the 
possession of the defendant, or of his agent, the constable, to 
whom an affidavit, requisition, and undertaking are delivered, 
must forthwith replevy it, by taking it into his possession. 
He must thereupon and at least six days before the return 
day of the summons, serve the summons, together with the 
affidavit and requisition, upon the defendant, by delivering to 
him personally, a copy of each, if he can, with reasonable 
diligence, be found within the county, at least six days before 
the return day of the summons; or, if he cannot be so found, 
by leaving a copy of each, certified by the constable, at the last 
place of residence of the defendant in the county, with a per- 
son of suitable age and discretion; or if such a person cannot 
be found there, by posting it on the outer door and also de- 
positing another copy in the nearest post office, inclosed in a 
sealed postpaid wrapper directed to the defendant at his resi- 
dence; or, if the defendant has no place of residence in the 
county, by delivering it to the person in whose possession the 
property attached is found. Code Civ. Pro. §§ 1700, 2910, 
2922. 

If any chattel, described in the affidavit, is secured or con- 
cealed in a building or inclosure, the constable must publicly 
demand its delivery. If it is not delivered, pursuant to the 
demand, he must cause the building or inclosure to be broken 
open, and must take the chattel into his possession. Code 
Civ. Pro. § 1701. 

A constable, who has replevied a chattel, must retain it in his 
^possession, keeping it in a secure place, until the person, who 
is entitled to the possession thereof, is ascertained. He must 
then deliver it to that person, upon request and payment of 
his lawful fses, and necessary expenses for taking and keeping 
it. Code Civ. Pro. § 1702. 



50 Constables' Guide. 

Return of constable. — The constable must, on 
or before the return day of the summons, make a 
return to the requisition, under his hand, stating 
all his proceedings thereupon ; and file it, with the 
affidavit and requisition, with the justice. The re- 
turn must state the manner in which the summons, 
affidavit, and requisition were served; and, if they 
were served otherwise than by delivering the requi- 
site copies to the defendant personally, the reason 
therefor, and the name of the person to whom the 
copies were delivered, unless his name is unknown 
to the constable ; in which case, the return must de- 
scribe him so as to identify him, as nearly as may 
be. Code Civ. Pro. § 2923. 

Defendant may reclaim chattel or except to plain- 
tiff's sureties. — At any time before the return day 
of the summons, the defendant may serve upon the 
justice a notice that he requires the return of the 
chattel replevied. With the notice he must deliver 
to the justice a proper affidavit and undertaking. 
Code Civ. Pro. § 2925. The defendant may at any 
time after the chattel has been replevied, and at 
least two days before the return day serve upon 
the plaintiff or upon the constable, a written notice 
that he excepts to the plaintiff's sureties. Code Civ. 
Pro. § 2924. 

When and to whom constable must deliver chat- 
tel. — If the defendant neither excepts to the plain- 
tiff's sureties, nor requires the return of a chattel, 
within the time prescribed for that purpose; or if 
he fails to procure the allowance of his undertaking; 
or if the plaintiff, after the defendant has excepted 
to his sureties, duly procures the allowance of his 
undertaking, the constable must, except in the case 
specified in the next section but one, immediately 
deliver the chattel to the plaintiff. If the plaintiff, 
after the defendant has excepted to his sureties, 
fails to procure the allowance of his undertaking; 



Replevin. 51 

or if the defendant, after he has required the return 
of the chattel, procures the allowance of his under- 
taking, the constable must immediately deliver the 
chattel to the defendant. Code Civ. Pro. § 2927. 

Penalty for wrong delivery by constable. — A 

constable who delivers to either party, without the 
consent of the other, a chattel replevied by him, ex- 
cept as prescribed in the last section, or, by virtue 
of an execution issued upon a judgment in the ac- 
tion, forfeits to the party aggrieved the sum of one 
hundred dollars ; and is also liable to him for all 
damages which he sustains thereby. Code Civ. 
Pro. § 2928. 

Claim of title by third party. — At any time be- 
fore a chattel, which has been replevied, is actually 
delivered to either party, if a person, not a party 
to the action, claims, as against the defendant, a 
right to the possession thereof, existing at the time 
when it was replevied, an affidavit may be made 
and delivered to the constable in his behalf, stating 
that he makes such a claim ; specifying the chattel 
or chattels to which it relates, if two or more chat- 
tels have been replevied, and the claim relates only 
to part of them ; and setting forth the facts upon 
which his right of possession depends. In that case, 
the constable may, in his discretion, before he de- 
livers the chattel to the plaintiff, serve upon the 
plaintiff personally or upon the person who appears 
for him before the justice, a copy of the affidavit, 
with a notice that he requires indemnity against 
the claim. If the indemnity is not furnished, within 
a reasonable time after the plaintiff becomes en- 
titled to the delivery of the chattel, the constable 
may, in his discretion, deliver it to the claimant, 
without incurring any liability to the plaintiff, by 
reason of so doing. Code Civ. Pro. § 1709. 

A person, not a party to the action, who has served an 
affidavit as prescribed in the last section, may maintain an 



52 Constables' Guide. 

action against the constable, who has delivered the chattel 
to the plaintiff, to recover his damages, by reason of the taking, 
detention, or delivery of the chattel. But the summons in 
such an action must be issued within three months after the 
delivery of the chattel to the plaintiff, and must be served 
within three months after it is issued. An action cannot be 
maintained against a constable by a person so entitled to make 
a claim, except as prescribed in this section. Code Civ. Pro. 
§ 1710. 

The indemnity, to be furnished to the constable by the 
plaintiff, must consist of a written undertaking to him, ex- 
ecuted by at least two sureties, to the effect that they will 
indemnify him against any liability for damages, costs, or 
expenses, to be incurred in an action brought against him 
by the claimant^ or a person deriving title from or through 
the claimant, by reason of the taking or detention of the 
chattel, or its delivery to the plaintiff, not exceeding a sum, 
to be specified in the undertaking, which need not exceed, in 
any case, three hundred dollars. Code Civ. Pro. § 1711. 

Execution upon judgment in action for a chattel. 

— In an action for a chattel, the possession of 
which has not been delivered to the prevailing 
party, an execution, for the delivery of the posses- 
sion thereof to him, as well as for any damages re- 
covered by him, may be issued by the justice, un- 
less the judgment has been docketed in the county 
clerk's office. It must be to the same efifect, and 
executed in the same manner, as a like execution is- 
sued upon a judgment rendered in the Supreme 
Court ; except that it must be directed generally to 
any constable of the county ; and that the direction 
to satisfy a sum of money, out of the property of 
the judgment debtor, m.ust be in the form prescribed 
for a like direction, where an execution is issued 
by a justice of the peace, upon a judgment for a 
sum of money. Code Civ. Pro. § 3038. 

An execution for the delivery of the possession of a chattel, 
must particularly describe the property, and designate the 
party to whom the judgment awards the possession thereof; 
and it must substantially require the constable to deliver the 
possession of the property, within his county, to the party 
entitled thereto. Code Civ. Pro. § 1373. 

\^Tiere the judgment awards a sum of money, if possession 
of the chattel is not delivered to the prevailing party, the 



Summary Proceedings. 53 

execution must require the constable, if the chattel cannot be 
found within his county, to satisfy the sum so awarded, with 
interest and his fees, out of the property of the party against 
whom the judgment is rendered. Code Civ. Pro. § 1731. 

For the purpose of taking possession of a chattel, by virtue 
of such an execution, the powers of the constable are the 
same, as where he is required to replevy a chattel. Code Civ. 
Pro. § 1732. 



CHAPTER XII. 

Summary Proceedings to Recover Real Property. 

Precept. — In a case where proper application has 
been made for the removal of a tenant from a 
house or other dwelling, by a landlord or other per- 
son entitled to make such application, the judge or 
justice, to whom the petition is presented, if the 
premises are situated within the jurisdiction of such 
judge or justice, must thereupon issue a precept, 
directed to the person or persons designated in the 
petition, as being in possession of the property, 
and requiring him or them forthwith to remove 
from the property, describing it, or to show cause, 
before him, at a time and place specified in the 
precept, why possession of the property should not 
be delivered. Code Civ. Pro. § 2238. 

Precept, how served. — The precept must be 
served as follows : 

1. By delivering, to the person to whom it is di- 
rected, or, if it is directed to a corporation, to an 
officer of the corporation, upon whom a summons, 
issued out of the Supreme Court, in an action 
against the corporation, might be served, a copy 
of the precept, and at the same time showing him 
thfe original. 

2. If the person, to whom the precept is directed, 
resides in the city or town in which the property 
is situated, but is absent from his dwelling house, 
service may be made by delivering a copy thereof 

at his dwelling house, to a person of suitable age 



54 Constables' Guide. 

and discretion, who resides there; or, if no such 
person can, with reasonable diligence, be found 
there, upon whom to make service, then by deliver- 
ing a copy of the precept, at the property sought to 
be recovered, either to some person of suitable age 
and discretion residing there, or if no such person 
of suitable age and discretion can be found there, 
to any person of suitable age and discretion em- 
ployed there. 

3. Where service cannot, with reasonable dili- 
gence, be made, as prescribed in either of the fore- 
going subdivisions of this section, by affixing a 
copy of the precept upon a conspicuous part of the 
property. 

If the precept is returnable on the day on which 
it is issued, it must be served at least two hours 
before the hour at which it is returnable ; in every 
other case, it must be served at least two days be- 
fore the day on which it is returnable. Code Civ. 
Pro. § 2240. 

A person, to whom a copy of a precept, directed to another, 
is delivered, as prescribed in the above section, must, without 
any avoidable delay, deliver it to the person to whom it is 
directed, if he can be found within the same town or city; 
or^ if he cannot be so found, after the exercise of reason- 
able diligence, before the time when the precept is returnable, 
to the judge or justice who issued the same, at the time of 
the return thereof, with a written statement indorsed there- 
upon, that he has been unable, after the exercise of reason- 
able diligence, to find the person to whom the precept is di- 
rected, or his agent, within the town or city. A person, who 
willfuly violates any provisions of this section, is guilty of a 
misdemeanor; and, if he is a tenant upon the property, for- 
feits to his landlord the value of three years' rent of the 
premises occupied by him. A copy of this section must be 
indorsed upon each copy of a precept, served otherwise than 
personally upon the person to whom it is directed. Code Civ. 
Pro. § 2241. 

Bawdy house. — Where the case is for the removal of the 
tenant of a house used as a bawdy house, upon the petition of 
a neighbor of such house, the precept must be directed to 
and served upon the owner or landlord, or his agent, and also 
upon the tenant or occupant of the property. Code Civ. Pro. 
§ 2242. 



Summary Proceedings. 55 

Return.— On or before the time when the pre- 
cept is returnable, if the precept is served by a con- 
stable, he must make a return showing the time, and 
the place and manner of service; and, unless service 
was made personally upon the adverse party, or by 
affixing a copy of the precept, the return must state 
the name of the person to whom a copy of the pre- 
cept was delivered, if his name can be ascertained 
with reasonable diligence. Code Civ. Pro. § 2243. 

The proof of service must show that the service was made 
in the manner precisely as the statute directs it to be made. 
43 Barb. 116. If the precept is made returnable on the same 
day, a constable's return should show the time of day that 
service was made in order that it may appear that it was 
served at least two hours before its return. If the precept 
is directed to more than one person, the constable should 
serve each person, and his return should show that service 
has been made upon each one. 12 Hun, 378. 

Trial. — If issue is joined and a trial is necessary, 
and a jury is demanded, it becomes the duty of any 
constable, if so commanded, to summon the jurors 
selected by the justice for the purpose of trying 
the matters in difference. After hearing the allega- 
tions and proofs of the parties, the said jury shall 
be kept together until they agree on their verdict, 
by the constable, or by some proper person ap- 
pointed by the judge or justice for that purpose, 
who shall be sworn to keep such jury as is usual in 
like cases of courts of record. Code Civ. Pro. 
§ 2247. 

Warrant to dispossess defendant. — Where the 
final order is in favor of the petitioner, the judge or 
justice must thereupon issue a warrant, under his 
hand, directed to the sheriff of the county,- or to 
any constable or marshal of the city, in which the 
property, or a portion thereof, is situated, or if it is 
not situated in a city, to any constable of any town 
in the county, describing the property, and com- 
manding the officer to remove all persons therefrom, 
and also, except in a case where the petition was 



56 Constables^ Guide. 

made by the neighbor of a bawdy-house, to put the 
petitioner into the full possession thereof. Code 
Civ. Pro. § 2251. 

Costs, when allowed, and the fees of officers, except where a 
fee is specially given in chapter twenty-one of this act, must 
be at the rate allowed by law in an action in a justice's court, 
and are limited in like manner. Code Civ. Pro. § 2250. 

Execution of warrant. — The officer, to whom the 
warrant is directed and delivered, must execute it, 
according to the command thereof, between the 
hours of sunrise and sunset. Code Civ. Pro. § 2252. 



CHAPTER XIII. 
Straying Animals Upon the Highways. 

Special proceeding relating to straying animals. 

— If a person suffers or permits one or more ani- 
mals to run at large in a public street, highwa}^ 
park, or place elsewhere than in a city, he incurs 
thereby, certain penalties set forth in section 3083 
of the Code of Civil Procedure, and the overseer 
of highways of the road district or the street com- 
missioner of a village, and in certain cases, private 
persons, have authority to seize such animals and 
keep them in their possession until they are dis- 
posed of in a manner prescribed by law. A peti- 
tion is presented to a justice of the peace of the 
town in which the seizure is made, and upon the 
presentation of the petition, the justice of the peace 
issues a precept requiring the person or persons to 
whom it is directed, to appear before the justice, at 
a time and place specified therein. 

Precept; how served. — The precept must be 
served upon the person, to whom it is directed by 
his name, within the same time, and in like manner 
as a summons is required to be served. Where it 
is directed generally to all persons, having an in- 



Straying Animals. 57 

terest in the animal or animals seized, it may be 
served by a constable of the town, by posting a 
copy thereof in at least six public and conspicuous 
places in the town where the seizure was made ; one 
of which places must be the nearest district school 
house, or, if the seizure was made within an in- 
corporated village, having schools in charge of a 
board of education, a building in which such a 
school is kept. Each copy must be so posted, within 
two days after the precept is issued. Where the 
precept is directed to a person by his name, and 
proof is made by affidavit, to the satisfaction of the 
justice, that it cannot, with reasonable diligence, be 
personally served upon that person, within the 
county, at least six days before the return day 
thereof, the justice may, by a written order, direct 
that service thereof be made, by posting copies 
thereof, at least five days before the return day, as 
prescribed in this section; in which case, service 
thereof may be made accordingly. Code Civ. Pro. 
§ 3088. 

If the precept was served by a constable, either personally 
or by posting, his written return upon the precept is suffi- 
cient proof of the facts relating to the service, as stated 
therein. Code Civ. Pro. § 3089. 

Decision in favor of petitioner; warrant to sell; 
execution thereof. — If no person appears and an- 
swers, or if the decision of the justice, or the ver- 
dict of the jury, where the issues were tried by a 
jury, is in favor of the petitioner, the justice must 
make a final order, directing the sale of the animal 
or animals seized, and the application of the pro- 
ceeds thereof. Thereupon the justice must issue a 
waiVant, under his hand, directed generally to any 
constable of the county, commanding him to sell 
the animal or animals seized, at public auction, 
for the best price which he can obtain therefor; 
and to make return thereof to the justice, at a time 
and place therein specified, not less than ten nor 
more than twenty days thereafter. The sale must 



58 Constables'' Gtjide. 

be made upon the like notice, and in like manner, 
as a sale of property by virtue of an execution is- 
sued by a justice of the peace; and the constable 
must make return, as required by the warrant, and 
must pay the proceeds of the sale to the justice, de- 
ducting therefrom his fees, at the rate allowed by 
law for the collection of such an execution. Code 
Civ. Pro. § 3091. 



CHAPTER XIV. 

Magistrates and the Warrant of Arrest. 

Magistrate, defined. — A magistrate is an officer, 
having power to issue a warrant for the arrest of a 
person charged with a crime. Crim. Code, § 146. 

Who are magistrates. — The following persons 
are magistrates: The justices of the Supreme 
Court; the judges of any city court; the county 
judges and special county judges; the city judge of 
the city of New York, and the judges of the court of 
general sessions in the city and county of New 
York ; the justices of the peace ; the police and other 
special justices appointed or elected in a city, vil- 
lage or town; the mayors and recorders of cities. 
Crim. Code, § 147. 

When an information has been laid before a 
magistrate, alleging that a person has been guilty 
of some designated crime, and the magistrate has 
examined the informant and his witnesses, if the 
magistrate is satisfied that the crime complained of 
has been committed and probably by the defendant 
named in the information, he must issue a warrant 
of arrest. Crim. Code, § 150. 

The warrant must be issued in the name of the 
people of the State, must be signed by the magis- 
trate, with his name of office, must specify the time 
when issued and place where issued, must state an 
offense in respect to which the magistrate has au- 
thority to issue the warrant and must specify the 



Magistrates and Wareant of Arrest. 59 

name of the defendant. If the name of the de- 
fendant is unknown to the magistrate, the defend- 
ant must be so described that he would be recog- 
nized by the constable. Crim. Code, §§ 151, 152; 
28 Barb. 630. 

The warrant must be directed to, and executed 
by, a peace officer. Crim. Code, § 153. 

The direction is an essential part of every warrant; unless 
it is directed to a peace officer it is not a proper or sufficient 
warrant. 51 Barb. 546. 

'Who are peace officers. — A peace officer is a sheriff of 
a county, or his under sheriff or deputy, or a constable, mar- 
shal, police constable or policeman of a city, town or village. 
Crim. Code, § 154. 

If the warrant be issued by a judge of the supreme court, 
recorder, city judge or judge of a court of general sessions in 
the city and county of New York, or by a county judge, or 
by the recorder of a city where jurisdiction is conferred by 
law upon such recorder, or by a judge of the city court, it 
may be directed generally to any peace officer in the State, 
and may be executed by any of those officers to whom it may 
be delivered. Crim. Code, § 155. 

If it be issued by any other magistrate, it may be directed 
generally to any peace officer in the county in which it is 
issued, and may be executed in that county; or if the defend- 
ant be in another county, it may be executed therein, upon 
the written direction of a magistrate of such other county 
indorsed upon the warrant, signed by him with his name 
of office and dated at the city, town or village where it is 
made, to the following effect : " This warrant may be executed 
in the county of Monroe" (or as the case may be). Crini. 
Code, § 156. 

The indorsement mentioned in the last section cannot, how- 
ever, be made, unless upon the oath of a credible witness, in 
writing indorsed on or annexed to the warrant, proving the 
handwriting of the magistrate by whom it was issued. Upon 
this proof, the magistrate indorsing the warrant is ex- 
empted from liability to a civil or criminal action, though it 
afterward appear that the warrant was illegally or ifnprop- 
erly ^issued. Crim. Code, § 157. 

Defendant, arrested for felony. — If the crime 
charged in the warrant be a felony the officer mak- 
ing the arrest must take the defendant before the 
magistrate who issued the warrant, or some other 
magistrate in the same county, as provided in sec- 
tion 164 of this chapter. Crim. Code, § 158. 



60 Constables' Guide. 

Defendant, arrested for a misdemeanor. — If the 

crime charged in the warrant be a misdemeanor, 
and the defendant be arrested in another county, the 
officer must, upon being required by the defendant, 
take him before a magistrate in that county, who 
must admit the defendant to bail, for his appearance 
before the magistrate named in the warrant, and 
take bail from him accordingly. Crim. Code, § 159. 

Proceedings on taking bail from the defendant, 
in such case. — On taking bail, the magistrate must 
certify that fact on the warrant, and deliver the 
warrant and undertaking of bail to the officer having 
charge of the defendant. The officer must -then dis- 
charge the defendant from arrest, and, without de- 
lay^ deliver the warrant and undertaking to the 
magistrate before whom the defendant is required 
to appear. Crim. Code, § 160. 

Proceedings, etc., but bail is not given. — If, on 
the admission of the defendant to bail, as provided 
in section 159, bail be not forthwith given, the offi- 
cer must take the defendant before a magistrate as 
directed by the warrant, or some other magistrate 
in the same town or county, as provided in section 
164 of this chapter. Crim. Code, § 161. 

Prisoner carried from county to city. — An officer 
who has arrested a defendant on a criminal charge, 
in any county, may carry such prisoner through 
such parts of any county or counties, as shall be in 
the ordinary route of travel from the place where 
the prisoner shall have been arrested, to the place 
where he is to be conveyed and delivered under the 
process, by which the arrest shall have been made, 
and such conveyance shall not be deemed an es- 
cape. Crim. Code, § 162. 

Power and privilege of officer. — While passing 
through such other county or counties, the officers 
having the prisoner in their charge shall not be 



Magistrates and Warrant of Arrest. 61 

liable to arrest on civil process ; and they shall have 
the like power to require any citizen to aid in se- 
curing such prisoner, and to retake him if he es- 
capes, as if they were in their own county; and 
a refusal or neglect to render such aid shall be an 
offense, in the same manner, as if they were officers 
of the county where such aid shall be required. 
Crim. Code, § 163. 

When magistrate issuing warrant unable to act. 

— When, by the preceding sections of this chapter, 
the defendant is required to be taken before the 
magistrate who issued the warrant, or before a 
magistrate of the town in which the offense was 
committed, he may, if that magistrate be absent or 
unable to act, be taken before the nearest or most 
accessible magistrate in the town in which the 
magistrate before whom the warrant is returnable, 
resides, if there be such a magistrate accessible and 
qualified to act, and otherwise, before the nearest 
or most accessible magistrate in the same county. 
The officer must, at the same time, deliver to the 
magistrate the warrant, with his return indorsed 
and subscribed by him. Crim. Code, § 164. 

Defendant, upon arrest, to be taken before magis- 
trate. — The defendant must in all cases be taken 
before the magistrate without unnecessary delay, 
and he may give bail at any hour of the day or 
night. Crim. Code, § 165. 



62 Coi^STABLEs' Guide. 

CHAPTER XV. 

Arrest. 

Section i. Arrest by an Officer, Under a Warrant. 

Arrest defined.— Arrest is the taking of a person 
into custody that he may be held to answer for a 
crime. Crim. Code, § 167. 

By whom an arrest may be made. — An arrest 
may be made, (i) By a peace officer, under a war- 
rant ; (2) By a peace officer, without a warrant ; or, 
(3) By a private person. Crim. Code, § 168. 

Every person bound to aid an officer in an arrest. 

— Every person must aid an officer in the execution 
of a warrant, if the officer require his aid and be 
present and acting in its execution. Crim. Code, 
I 169. 

When the arrest may be made. — If the crime 
charged be a felony, the arrest may be made on any 
day, and at any time of the day or during any 
night. If it be a misdemeanor, the arrest cannot 
be made on Sunday, or at night, unless by direction 
of the magistrate indorsed upon the warrant. Crim. 
Code, § 170. 

How an arrest is made. — An arrest is made by 
an actual restraint of the person of the defendant, 
or by his submission to the custody of the officer. 
Crim. Code, § 171. 

No further restraint allowed, than is necessary. — 

The defendant is not to be subjected to any more 
restraint than is necessary for his arrest and de- 
tention. Crim. Code, § 172. 

Officer must state his authority, and show war- 
rant, if required. — The defendant must be informed 
by the officer that he acts under the authority of 



Arrest. 63 

the warrant, and he must also show the warrant, if 
required. Crim. Code, § 173. 

If defendant flee or resist, officer may use all 
necessary means to effect arrest. — If, after notice 
of intention to arrest the defendant, he either flee 
or forcibly resist, the officer may use all necessary 
means to effect the arrest. Crim. Code, § 174. 

When officer may break open a door or window. 

— The officer may break open an outer or inner 
door or window of any building, to execute the war- 
rant, if, after notice of his authority and purpose, 
he be refused admittance. Crim. Code, § 175. 

Outer or inner door. — An officer may break open 
an outer or inner door or window of any building, 
for the purpose of liberating a person, who, having 
entered for the purpose of making an arrest, is de- 
tained therein, or when necessary for his own liber- 
ation. Crim. Code, § 176. 

Section 2. Arrest by an Officer Without a Warrant. 

In what cases allowed. — A peace officer may, 
without a warrant, arrest a person: (i) For a 
crime, committed or attempted in his presence ; (2) 
When the person arrested has committed a felony, 
although not in his presence; (3) When a felony 
has in fact been committed, and he has reasonable 
cause for believing the person to be arrested to 
have committed it. Crim. Code, § 177. 

May break open a door or window, if admittance 
refused. — To make an arrest, as provided in the 
last section, the officer may break open an outer 
or itmer door or window of a building if, after no- 
tice of his office and purpose, he be refused admit- 
tance. Crim. Code, § 178. 

May arrest at night, on reasonable suspicion of 
felony. — He may also, at night, without a warrant, 



64 Constables'' Guide. 

arrest any person whom he has reasonable cause 
for believing to have committed a felony, and is jus- 
tified in making the arrest, though it afterward ap- 
pear that a felony had been committed, but that 
the person arrested did not commit it. Crim. Code, 
§ 179. 

Must state his authority, and cause of arrest, ex- 
cept where party is committing felony or is pur- 
sued after escape. — When arresting a person with- 
out a warrant the officer must inform him of the 
authority of the officer and the cause of the arrest, 
except when the person arrested is in the actual 
commission of a crime, or is pursued immediately 
after an escape. Crim. Code, § 180. 

May take before a magistrate, a person arrested 
by a bystander for breach of the peace. — A peace 
officer may take before a magistrate, a person, who, 
being engaged in a breach of the peace, is arrested 
by a bystander and delivered to him. Crim. Code, 
§ 181. 

Section 3. Retaking, After an Escape or Rescue. 

May be at any time, or in any place in the State. 

— If a person arrested escape or be rescued, the 
person from whose custody he escaped, or was res- 
cued, may immediately pursue and retake him, at 
any time, and in any place in the State. Crim. 
Code, § 186. 

May break open a door or window, if admittance 
refused. — To retake the person escaping or rescued, 
the person pursuing may, after notice of his inten- 
tion and refusal of admittance, break open an outer 
or inner door or window of a building. Crim. Code, 

§ 187. 



Aeeest. 65 

Section 4. Recommitment of Defendant. 

Whenever, in a proper case, a defendant is di- 
rected to be arrested and recommitted to custody, 
the order for the recommitment of the defendant 
must recite, generally, the facts upon which it is 
founded, and direct that the defendant be arrested 
by any sheriff, constable, marshal or policeman in 
this State, and committed to the officer to whose 
custody he was committed, at the time he was ad- 
mitted to bail, to be detained until legally dis- 
charged. Crim. Code, § 600. 

Defendant may be arrested in any county. — The 

defendant may be arrested pursuant to the order, 
upon a certified copy thereof, in any county, in the 
same manner as upon a warrant of arrest; except, 
that when arrested in another county, the order 
need not be indorsed by a magistrate of chat county. 
Crim. Code, § 601. 

If for failure to appear for judgment, defendant 
must be committed. — If the order recite, as the 
ground upon which it is made, the failure of the de- 
fendant to appear for judgment upon conviction, 
the defendant must be committed according to the 
requirement of the order. Crim. Code, § 602. 

Section 5. Bench Warrants. 

(a) For arraignment. — If a defendant has been 
indicted for a felony, he must be personally present 
when arraigned; but if the defendant have been 
discharged on bail, or have deposited money instead 
thereof, and do not appear to be arraigned, or if 
the defendant be for any cause absent when his 
personal attendance is necessary, the court, in ad- 
dition to the forfeiture of any undertaking of bail, 
or of any money deposited, may direct the clerk to 
issue a bench warrant for his arrest. Crim. Code, 
§ 299. 



66 Constables^ Guide. 

Bench warrant by whom, and how issued. — The 

clerk on the application of the district attorney, may 
accordingly at any time after the order, whether 
the court be sitting or not, issue a bench warrant 
to one or more counties. A bench warrant for the 
arrest of any defendant indicted may also be issued 
by the district attorney at any time after the in- 
dictment is found. Crim. Code, § 300. 

The bench warrant is issued to any peace officer 
in the State and must command such officer to ar- 
rest the defendant and bring him before the court 
ordering the warrant or as the warrant may direct. 
Crim. Code, § 301. 

Direction in bench warrant, if indictment be for 
misdemeanor. — If the crime be a misdemeanor, the 
bench warrant must add to the body thereof a di- 
rection to the following effect : " or if he require it, 
that you take him before any magistrate in that 
county, or in the county in which you arrest him, 
that he may give bail to answer the indictment.'' 
Crim. Code, § 302. 

Bench warrant, how served. — The bench warrant 
may be served in any county, in the same manner 
as a warrant of arrest, except, that when served in 
another county, it need not be indorsed by a magis- 
trate of that county. Crim. Code, § 304. 

Proceedings on bench warrant when defendant 
is brought before magistrate of another county. — 

If the defendant be brought before a magistrate of 
another county for the purpose of giving bail, the 
magistrate must proceed in respect thereto, in the 
same manner as if the defendant had been brought 
before him upon a warrant of arrest, and the same 
proceedings may be had thereon. Crim. Code, 
§ 305. 

(b) For judgment; time for pronouncing judg- 
ment, to be appointed by the court. — After a plea 



Areest. 67 

or verdict of guilty, the court appoints a time for 
pronouncing judgment. Crim. Code, § 471. 

In felony, defendant must be present; in misde- 
meanor, judgment may be pronounced in his ab- 
sence. — For the purpose of judgment, if the con- 
viction be for a felony, the defendant must be per- 
sonally present; if it be for a misdemeanor, judg- 
ment may be pronounced in his absence. Crim. 
Code, § 473. 

When defendant is in custody, how brought be- 
fore the court for judgment. — When the defendant 
is in custody, the court may direct the officer in 
whose custody he is, to bring him before it for judg- 
ment; and the officer must do so accordingly. Crim. 
Code, § 474. 

How brought before the court, when he is on bail. 

— If the defendant have been discharged on bail, 
or have deposited money instead thereof, and do 
not appear for judgment, when his personal attend- 
ance is necessary, the court in addition to the for- 
feiture of the undertaking of bail or of the money 
deposited, may direct the clerk to issue a bench war- 
rant for his arrest. Crim. Code, § 475. 

Bench warrant to issue. — The clerk, on the ap- 
plication of the district attorney, may accordingly, 
at any time after the order, whether the court be 
sitting or not, issue a bench warrant into one or 
more counties. Crim. Code, § 476. 

Form of bench warrant. — The bench warrant 
must be substantially in the form prescribed for a 
bench warrant, issued after indictment, for arraign- 
ment, commanding the officer '' forthwith to arrest 
the above-named A. B. and bring him before 
that court for judgment.'' Crim. Code, § 477. 



68 CoisrsTABLEs' Guide. 

Service of the bench warrant. — The bench war- 
rant may be served in any county, in the same man- 
ner as a warrant of arrest ; except that when served 
in another county it need not be indorsed by a 
magistrate of that county. Crim. Code, § 478. 

Same. — Whether the bench warrant be served 
in the county in which it was issued, or in another 
county, the officer must arrest the defendant and 
bring him before the court, or commit him to the 
officer mentioned in the warrant, according to the 
command thereof. Crim. Code, § 479. 

Section 6. Peace Warrant. 

If it appear to a magistrate from information and 
testimony given him that there is just reason to fear 
the commission of a crime threatened by a person 
complained of, the magistrate must issue a warrant, 
directed generally to the sheriff of the county, or 
any constable, marshal or policeman of the city or 
town, reciting the substance of the information, and 
commanding the officer forthwith to arrest the per- 
son complained of, and bring him before the magis- 
trate. Crim. Code, § 86. 

Section 7. Habeas Corpus. 

Habeas corpus, how served ; fees and undertaking, 
when required. — A writ of habeas corpus can be 
served only by an elector of the State. Where the 
prisoner is in custody of a sheriff, coroner, constable 
or marshal, the service is not complete, unless the 
person serving the writ tenders to the officer, the 
fees allowed by law for bringing up the prisoner, and 
delivers to him an undertaking, with at least one 
surety, in a sum specified therein, to the effect, that 
the surety will pay the charges of carrying back 
the prisoner, if he shall be remanded ; and that the 
prisoner will not escape by the way, either in going 
to, remaining at, or returning from the place to 
which he is to be taken. The sum so specified must 
be, at least, twice the sum for which the prisoner 



Special Proceedings. 69 

is detained, if he is detained for a specific sum of 
money; if not, it must be one thousand dollars. 
Code Civ. Pro. § 2000. 

Under sections 2054 and 2055 of Code of Civil Procedure, 
the officer or other person, to whom the warrant is directed 
and delivered, must execute it by bringing the prisoner and 
also, if the warrant so commands, the person who detains 
him, before the court or judge who issued it. 

Section 8. Coroner's Warrant. 

Warrant for arrest of party charged by verdict. — 
If a coroner or jury, where a jury is summoned finds 
that a person was killed or wounded by another, 
under circumstances not excusable, or justifiable, 
by law, or that his death was occasioned by the act 
of another, by criminal means, and the party com- 
mitting the act be ascertained by the inquisition or 
decision, and be not in custody, the coroner must 
issue a warrant, signed by him with his name of 
office, into one or more counties, as may be neces- 
sary, for the arrest of the person charged. Crim. 
Code, § 780. 

Warrant, how executed. — The coroner's warrant 
may be served in any county ; and the officer serving 
it must proceed thereon, in all respects, as upon a 
warrant of arrest on an information ; except, that 
when served in another county, it need not be in- 
dorsed by a magistrate of that county. Crim. Code, 
§ 782. 

CHAPTER XVI. 

Special Proceedings of a Criminal Nature. 

Section i. Search Warrants. 

Search warrant, defined. — A search warrant is an 
order in writing, in the name of the people, signed 
by a magistrate, directed to a peace officer, com- 
manding him to search for personal property, and 
bring it before the magistrate. Crim. Code, § 791. 



TO Constables' Guide. 

Magistrate, when to issue warrant. — If the magis- 
trate be satisfied, after examining, upon oath, the 
complainant and his witnesses, of the existence of 
the grounds of the appHcation, or that there is prob- 
able cause to believe their existence, he must issue a 
search warrant, signed by him with his name of 
office, to a peace officer in his county, commanding 
him forthwith to search the person or place named, 
for the property specified, and to bring it before the 
magistrate. Crim. Code, § 796. 

By whom served. — A search warrant may, in all 
cases, be served by any of the officers mentioned in 
its direction, but by no other person, except in aid 
of the officer, on his requiring it, he being present 
and acting in its execution. Crim. Code, § 798. 

Officer may break open door or window, to exe- 
cute warrant. — The officer may break open an outer 
or inner door or window of a building, or any part 
of the building, or any thing therein, to execute the 
warrant, if, after notice of his authority and pur- 
pose, he be refused admittance. Crim. Code, § 799. 

May break open door or window, to liberate per- 
son acting in his aid, or for his own liberation. — He 

may break open any outer or inner door or window 
of a building for the purpose of liberating a person, 
who, having entered to aid him in the execution of 
the warrant, is detained therein, or when necessary 
for his own liberation. Crim. Code, § 800. 

When warrant may be served in the night time, 
and direction therefor. — The magistrate must in- 
sert a direction in the warrant, that it be served in 
the day time, unless the affidavits be positive that 
the property is on the person, or in the place to be 
searched; in which case, he may insert a direction 
that it be served at any time of the day or night. 
Crim. Code, § 801. 



Special Proceedings. 71 

Within what time warrant must be executed and 
returned. — A search warrant must be executed and 
returned to the magistrate by whom it was; issued, 
if issued in the city and county of New York, within 
five days after its date, and if in any other county, 
within ten days. After the expiration of those times 
respectively, the warrant, unless executed, is void. 
Crim. Code, § 802. 

Officer to give receipt for property taken. — When 
the officer takes property under the warrant, he 
must give a receipt for the property taken (specify- 
ing it in detail), to the person from whom it was 
taken by him, or in whose possession it was found, 
or, in the absence of any person, he must leave it in 
the place where he found the property. Crim. Code, 
§ 803. 

Return of warrant, and delivery to magistrate of 
inventory of property taken. — The officer must 
forthwith return the warrant to the magistrate, and 
deliver to him a written inventory of the property 
taken, made publicly, or in the presence of the per- 
son from whose possession it was taken and of the 
applicant for the warrant, if they be present, veri- 
fied by the affidavit of the officer, and taken before 
the magistrate, to the following effect : '' I, A. B., 
the officer by whom this warrant was executed, do 
swear that the above inventory contains a true and 
detailed account of all the property taken by me on 
the warrant.'' Crim. Code, § 805. 

Peace officer, exceeding his authority. — A peace 
officer, who, in executing a search warrant, willfully 
exceeds his authority, or exercises it with unneces- 
sary severity, is guilty of a misdemeanor. Crim. 
Code, § 812. 

Habitual criminals ; always liable to search, etc. — 

The person and the premises of every one who has 
been convicted and adjudged an habitual criminal 



72 Constables' Guide. 

shall be liable at all times to search and examination 
by any magistrate, sheriff, constable, or other officer, 
with or without warrant. Crim. Code, § 514. 

Search warrant for books and papers of an ex- 
officer. — Where any person having been removed 
from office, or whose term of office has expired, re- 
fuses on demand to deliver over to his successor, all 
the books and papers in his custody, appertaining 
to his office, he may be committed to jail by a jus- 
tice of the supreme court of the district, or the 
county judge of the county in which the person re- 
sides. On such commitment, such justice or judge, 
if required by the complainant, shall also issue his 
warrant directed to any sheriff or constable com- 
manding him to search, in the day time, the places 
designated in the warrant, for such books and 
papers, and to bring them before such justice or 
judge. Code Civ. Pro. § 2471 (a). 

Search warrant for obscene or indecent books, 
prints, etc. — A magistrate, upon complaint being 
made to him, must issue a warrant, directed to the 
sheriff, or to any constable, marshal or police officer 
within the county, directing him to search for, seize 
and take possession of any obscene or indecent book, 
writing, paper, picture, etc., or article for immoral 
use, in the possession of the person against whom 
complaint is made. Penal Code, § 320. 

Section 2. Disorderly Persons. 

On complaint, warrant to be issued. — Upon com- 
plaint on oath, to a justice of the peace or police 
justice of a city, village or town, or to the mayor, 
recorder, city judge or judge of the general sessions 
of a city, against a person, as being disorderly, the 
magistrate must issue a warrant, signed by him, 
with his name of office, requiring a peace officer to 
arrest the defendant, and bring him before the 
magistrate for examination. Crim. Code, § 900. 



Special PkOv eedings. 73 

Section 3. Bastardy Proceedings. 

Examination by the magistrate and warrant 
against the father. — The magistrate must, by the 
examination of the woman on oath, and any other 
testimony which may be offered, ascertain the father 
of the bastard, and must issue his warrant, directed 
to a peace officer of the county, commanding him, 
without delay, to apprehend the father, and bring 
him before the justice, for the purpose of having 
an adjudication as to the affiliation of the bastard. 
Crim. Code, § 841. 

Warrant, when to be served in another county. — 

If the defendant reside in another county than that 
in which the warrant issued, the magistrate must, 
by an indorsement thereon, direct the sum in which 
the defendant shall give security, and the officer 
must deliver the warrant to a justice of the peace 
or police justice in the city or town in which the 
defendant resides or is found. The magistrate to 
whom it is presented, on proof, under oath, of the 
signature of the magistrate who issued the warrant, 
must then indorse a direction thereon, that it be 
served in the county in which he resides, and the 
defendant may be arrested in that county accord- 
ingly. Crim. Code, § 843. 

Magistrate in another county, may take under- 
taking for support of bastard and mother, or for 
appearance of defendant at the sessions. — When 
the defendant is arrested in another county, he must 
be taken before the magistrate who indorsed the 
warrant, or before another magistrate of the same 
city or county, who may take from the defendant an 
undertaking for the support of the bastard and 
mother, or for the appearance of defendant at the 
next county court. Crim. Code, § 844. 

On giving undertaking, defendant to be dis- 
charged. — When either of the undertakings men- 



74 Constables'' Guide. 

tioned in the last section is given, the magistrate 
must discharge the defendant, and must indorse a 
certificate of the discharge upon the warrant. He 
must also deliver the warrant, with the undertak- 
ing, to the officer, who must return it to the magis- 
trate granting the warrant, by whom the same pro- 
ceedings must be had, as if he had taken the under- 
taking. Crim. Code, § 845. 

If undertaking not given, defendant to be taken 
before magistrate who issued the warrant. — If the 

defendant do not give security, as provided in sec- 
tion 844, the officer must take him before the magis- 
trate who issued the warrant. Crim. Code, § 846. 

Before what magistrate in the same county, de- 
fendant to be taken, when the magistrate issuing 
the warrant is unable to act. — If, however, the 
magistrate who issued the warrant be absent or un- 
able to act, the defendant must be taken before the 
nearest or most accessable magistrate in the same 
county. The officer must, at the same time, deliver 
to the magistrate, the warrant with his return in- 
dorsed and subscribed by him. Crim. Code, § 847. 

During the examination, and until discharged, defendant 
must remain in the custody of the officer who arrested him. 
Crim. Code, § 853. 

Section 4. Proceedings Against Corporations. 

Summons upon an information against a corpora- 
tion, by whom issued, and when returnable. — Upon 
an information against a corporation, the magistrate 
must issue a summons, signed by him, with his 
name of office, requiring the corporation to appear 
before him, at a specified time and place, to answer 
the charge ; the time to be not less than ten days 
after the issuing of the summons. Crim. Code, 
§ 675- 

When and how served. — The summons must be 
served at least five days before the day of appear- 



Special Proceedings. 75 

ance fixed therein, by delivering a copy thereof and 
showing the original to the president, or other head 
of the corporation, or to the secretary, cashier, or 
managing agent thereof. Crim. Code, § 6yy. 

Section 5. Disposal of Property, Stolen or Em- 
bezzled. 
When property, alleged to be stolen or embezzled, 
comes into custody of peace officer. — When prop- 
erty, alleged to have been stolen or embezzled, 
comes into the custody of a peace officer, he must 
hold it, subject to the order of the magistrate au- 
thorized by the next section to direct the disposal 
thereof. Crim. Code, § 685. 

Order for its delivery to owner. — On satisfactory 
proof of the title of the owner of the property, the 
magistrate before whom the information is laid, or 
who examines the charge against the person ac- 
cused of stealing or embezzling the property, may 
order it to be delivered to the owner, unless its 
temporary retention be deemed necessary in fur- 
therance of justice, on his paying the reasonable 
and necessary expenses incurred in its preservation, 
to be certified by the magistrate. The order en- 
titles the owner to demand and receive the property. 
Crim. Code, § 686. 

Section 6. Compelling Attendance of Witnesses. 

Subpoena, by whom served. — A peace officer 
must serve, in his county, city, town or village, as 
the case may be, any subpoena delivered to him for 
service, either on the part of the people or of the 
defendant ; and must make a written return of the 
service, subscribed by him, stating the time and 
place of service without delay. A subpoena may, 
however, be served by any other person. Crim. 
Code, § 614. 



76 Constables^ Guide. 

How served. — A subpoena is served, by deliver- 
ing it, or by showing it, and delivering a copy 
thereof, to the witness personally. Crim. Code, 
§ 615. 

The officer or person serving the subpoena does not have 
to pay the witness any fees as in a civil action. 



CHAPTER XVII. 

Courts of Special Sessions. 

Jury, how summoned. — If a jury trial be demand- 
ed, the court must insert the names of the twelve 
persons drawn by him in an order directed to any 
constable of the county, or marshal or police officer 
of the city or village where the offense is to be tried 
and having authority to execute process of the court, 
commanding him to summon the persons therein 
named to appear before the said court at a time not 
more than three days from the time of the making 
of said order, unless the trial of said issue be longer 
adjourned by consent and at a place named therein, 
to constitute a jury for the trial of the alleged of- 
fense. Crim. Code, § 703. 

Summoning jury, and returning order. — The 

court must deliver, or cause to be delivered, the said 
order to any officer to whom the same is directed 
and empowered to execute the same. The officer 
to whom said order is so delivered must thereupon 
summon personally each of the persons drawn and 
named therein, to serve as such jurors by exhibiting 
to them the said order and at the same time reading 
to or stating to them the substance thereof. He 
shall then make his return to said order, certifying 
that he personally served it upon each of the per- 
sons named therein and in each case of his being 
unable to do so the reason thereof. Crim. Code, 
§ 704. 



Courts of Special Sessions. Y7 

Punishing officer for not returning list, and issu- 
ing new order for jury. — If the officer to whom the 
order is delivered do not return it, as required by- 
section 704, he may be punished by the court, as for 
contempt; and the court must issue a new order for 
the summoning of jurors, in substantially the same 
form; upon which the same proceedings must be 
had as upon the one first issued. Crim. Code, § 709. 

Talesmen, when and how ordered and summoned. 

— If six of the jurors summoned do not attend, or 
be not obtained, the court may direct the officer to 
summon any of the bystanders, or others, who may 
be competent, and against whom there is no suffi- 
cient cause of challenge, to act as jurors. Crim. 
Code, § 708. 

Jury may decide in court, or retire; oath of offi- 
cer on their retirement. — After hearing the proofs 
and allegations, the jury may either decide in court 
or may retire for consideration. If they do not im- 
mediately agree, an officer must be sworn to the 
following eif ect : " You do swear, that you will 
keep this jury together in some private and con- 
venient place, without food or drink, except bread 
and Vv^ater, unless otherwise ordered by the court; 
that you will not permit any person to speak to or 
communicate with them, nor do so yourself, unless 
it be to ask them whether they have agreed upon 
a verdict; and that you will return them into court 
when they have so agreed, or when ordered by the 
court.'' Crim. Code, § 713. 

Judgment, by whom executed. — The judgment 
must be executed by the sheriff of the county, or 
by a constable, marshal or policeman of the city, 
village or town in which the conviction is had, upon 
receiving a copy of the certificate of conviction, cer- 
tified by the court or the county clerk. Crim. Code, 

§ 725- 



78 Constables' Guide. 

The certificate of conviction should prescribe either that the 
defendant be imprisoned in the jail of the county for a certain 
number of days or pay a fine of a certain number of dollars 
and be imprisoned until it is paid, not exceeding a certain 
number of days, or both, as the case may be. 

During time allowed for bail, and until judgment, 
defendant to be continued in custody of officer or 
committed to jail. — During the time allowed to the 
defendant to give bail, and until judgment is given, 
he may be continued in the custody of the officer, 
or committed to the jail of the county to answer the 
charge, as the magistrate may direct. Crim. Code, 
§ 733. 

Commitment, by whom executed. — When com- 
mitted, the defendant must be delivered to the cus- 
tody of the proper officer, by any peace officer in 
the county to whom the magistrate may deliver the 
commitment. Crim. Code, § 735. 



CHAPTER XVIII. 
Duties of Constable as Peace Officer Generally. 

A constable should be on the lookout for crime 
and he has the right to arrest without a warrant any- 
one who is guilty of a misdemeanor in his presence ; 
and he may arrest anyone guilty of a felony, without 
a warrant, whenever he may be found within the 
State, even though the act was not committed in 
his presence. Crim. Code, § 177. 

It is the duty of constables to arrest persons who 
are disturbing religious meetings (Penal Code, 
§ 274) ; to arrest all vagrants (Crim. Code, § 887) ; 
to prevent all interference with any ambulance and 
arrest all such offenders (Penal Code, § 432) ; to 
inform against and prosecute all persons who they 
have reason to believe are violating the provisions 
of the Penal Code (§§ 336-352), relating to keeping 



Duties of Constable as Peace Officer. 79 

gambling apparatus, winning and exacting money 
at play, keeping gambling establishments, acting 
as common gambler, persuading another to visit 
gambling places, pool selling, book making, etc., 
and improper racing of animals. It is also the duty 
of constables having notice or knowledge of any 
violation of the provisions of the Liquor Tax Law 
to immediately notify the district attorney of the 
county in which violation occurs, by a statement 
under oath of the fact of such violation. Gen'l 
Laws, p. 2398, Liquor Tax Law, § 37. Under the 
Forest, Fish and Game Law, § 177 (Gen'l Laws, 
p. 2532), constables have the same rights as game 
protectors except the right of search without war- 
rant. Under Penal Code, § 668, a constable must 
arrest and bring before the magistrate having juris- 
diction any person violating any of the provisions of 
law forbidding cruelty to animals. A constable may 
also arrest any person trading as a peddler who 
has no license or neglects or refuses to produce his 
license on demand and shall immediately convey 
such person before some justice of the peace of the 
county. Domestic Commerce Law, § 63 (Gen'l 
Laws, p. 2821). 

A constable must arrest and bring before a magis- 
trate having jurisdiction, any person violating any 
of the provisions of the Penal Code, sections 287 to 
293, relating to '' abandonment of children under 
six years,'' '' unlawfully omitting to provide for 
children," '' endangering life, morals or health of 
children under sixteen years of age,'' '' cruelty to 
children," '' vagrant children," '' certain employ- 
ment of children under sixteen years of age," '' send- 
ing messenger boys to certain places," and " taking 
children as apprentices without consent of guar- 
dian." 



so Constables' Guide. 

CHAPTER XIX. 
Constable's Fees in Civil Cases. 

A constable is entitled, for the services specified 
in this section, to the following fees : 

I. In an action brought before a justice of the 
peace, or in a justices' court of a city: 

For serving a summons, twenty-five cents. 

For serving a summons and executing an order 
of arrest, one dollar. 

For serving a summons and levying a warrant of 
attachment, one dollar. 

For serving a summons and affidavit, and execut- 
ing a requisition, in an action for a chattel, one dol- 
lar. 

For serving an order, directing the action to be 
continued before a justice, other than the one before 
whom it is pending, and for attending before the 
latter, fifty cents, and fifty cents in addition if he 
so attends with a person in his custody. 

For collecting money by virtue of an execution, 
for every dollar collected, to the amount of fifty dol- 
lars, five cents ; for every dollar collected over fifty 
dollars, two and one-half cents. Where a judgment 
or an execution is settled after a levy, the constable 
is entitled to poundage upon the sum at which the 
settlement is made, not exceeding the value of the 
property levied upon. 

For each mile necessarily traveled, going and re- 
turning, to serve a summons or to serve or execute 
any other mandate, except a venire, the distance to 
be computed from the place of abode of the person 
served, or the place where it is served, to the place 
where it is returnable, ten cents; but where two 
or more mandates in one action are served or exe- 
cuted upon one journey, or where a mandate is 
served upon or executed against two or more per- 
sons in one action, he is entitled, in all, to only ten 
cents for each mile necessarily traveled. 



Co^ststable's Fees in Civil Cases. 81 

For notifying the plaintiff of the execution of an 
order of arrest, twenty-five cents ; and for going to 
the plaintiff's residence, or, if he is found elsewhere, 
to the place where he is found, to serve such a no- 
tice, for each mile traveled, going and returning, 
ten cents. 

For subpoenaing each witness, not exceeding 
four, twenty-five cents. 

For notifying the jurors to attend a trial, one dol- 
lar and fifty cents. 

For taking charge of a jury during their delibera- 
tions, fifty cents. 

Where witnesses, not exceeding four, are sub- 
poenaed by any person other than a constable, the 
fee therefor is ten cents each. 

2. In a special proceeding: 

For notifying jurors to attend to assess damages, 
in proceedings relating to highways, two dollars. 

For notifying jurors to attend in any other case, 
unless a fee therefor is specially prescribed by law, 
for each person notified, ten cents ; and for each mile 
actually and necessarily traveled, going from and 
returning to his place of residence, ten cents. 

For serving a precept or other mandate, by which 
the special proceeding is commenced, twenty-five 
cents. 

For serving a warrant, in any case where a fee 
therefor is not specially prescribed by law, fi.fty 
cents. 

For serving an order, directing the special pro- 
ceeding to be continued before a justice other than 
the one before whom it is pending, and for attend- 
ing before the latter, with or without a person in 
his custody, one dollar. 

For arresting and committing any person, pur- 
suant to process, one dollar. 

*'For subpoenaing each witness, not exceeding 
four, twenty-five cents. 

For each mile necessarily traveled, going and re- 
turning, to serve or execute a mandate, the distance 



82 Constables^ Guide. 

to be computed from the place where it is served or 
executed, to the place where it is returnable, unless 
a different rate of travel fees upon the service or 
execution thereof, is specially prescribed by statute, 
ten cents. Where two or more mandates are served 
or executed in one special proceeding, the limitation 
upon the amount of travel fees specified in the last 
preceding subdivision applies. Code Civ. Pro. 

§ 3323- 

Taking fees not prescribed by law, prohibited. — 

Each public officer, upon whom a duty is expressly imposed 
by law, must execute the same without fee or reward, except 
where a fee or other compensation therefor is expressly al- 
lowed by law. An officer or other person, to whom a fee or 
other compensation is allowed by law, for any service, shall 
not charge or receive a greater fee or reward, for that service, 
than is so allowed. Code Civ. Pro. § 3280. 

Taking fees for services not rendered, except, etc. — 
An officer, or other person, shall not demand or receive any 
fee or compensation, allowed to him by law for any service, 
unless the service was actually rendered by him; except that 
an officer may demand in advance his fee, where he is, by law, 
expressly directed or permitted to require payment thereof, 
before rendering the service. Code Civ. Pro. § 3281. 

Penalty for extortion. — An officer or other person, who 
violates either of the provisions contained in the last two sec- 
tions, is liable, in addition to the punishment prescribed by 
law for the criminal offence, to an action in behalf of the 
person aggrieved, in which the plaintiff is entitled to treble 
damages. Code Civ. Pro. § 3282. 

Constable's fees; affidavit upon claim for travel fees. 

— A constable who charges any traveling fees, must show, 
by affidavit, that the travel was necessary to perform the ser- 
vice with respect to which it is charged; that no more miles 
are charged for, than were actually and in good faith traveled 
for that purpose; that he had at the time no other official or 
private business upon the route so traveled; and that the 
traveling fees are charged upon one mandate only, which 
must be attached to or described in the affidavit. The justice 
taxing the fees must be satisfied that the miles charged for 
were actually and necessarily traveled, as stated in the affi- 
davit. Code Civ. Pro. § 3324. 

Constable's fees to be paid before services rendered. 

— A justice of the peace, or a constable, juror, or witness, 
before a justice of the peace, is not obliged to render any 
service specified in this title, without the previous payment or 
tender of his fee therefor. Code Civ. Pro. § 3328. 



Constable's Fees in Ceiminae Cases. 83 

A constable is not entitled to travel fees for traveling to 
serve process unless the service is actually made ( 1 Denio, 
658 ) ; and he can charge travel fee for no more miles than 
are actually and necessarily traveled in executing the man- 
date. 8 Civ. Pro. R. 325. 

A constable cannot recover fees for a mere levy without a 
sale. It is only where the collection of the money is pre- 
vented by the act of the plaintiff, or the operation of law, 
that the constable may recover without completing his ser- 
vice. 2 Cow. 421. 

Although a constable is responsible for the safety of at- 
tached property, the law has given him no specific allowance 
for the service, assuming that the compensation is included in 
the ordinary fees. 5 Lans. 153. 

Except as otherwise expressly prescribed therein, the previ- 
ous sections do not apply to a service rendered in a criminal 
action or special proceeding, in a court or before an officer. 
Code Civ. Pro. § 3332. 



CHAPTER XX. 
Constable's Fees in Criminal Cases. 

Constables shall hereafter be allowed the fees 
hereinafter stated for the following services in 
criminal cases : 

For serving a warrant, seventy-five cents. 

For every mile traveled, going or returning, ten 
cents. 

For taking a defendant into custody on a mit- 
timus, twenty-five cents. 

For every mile traveled in taking a prisoner to 
jail, going and returning, ten cents. 

For serving subpoena, twenty-five cents. 

For every mile traveled in serving each subpoena, 
going and returning, five cents. 

For notifying a complainant, twenty-five cents. 

For every mile traveled in notifying a^ complain- 
ant, going and returning, five cents. 

For keeping a prisoner after being brought before 
a justice, and by his direction in custody, per day, 
one dollar. 

For taking charge of a jury during their delibera- 
tions, fifty cents. 



84 Constables' Guide. 

The following are county charges: 

Compensation allowed by law to constables for attending 
courts of record, and the compensations allowed by law to 
constables and other officers, for executing process on persons 
charged with a felony; for services and expenses in conveying 
such persons to jail; and for the service of subpoenas issued 
by the district attorney and for other services in relation to 
criminal proceedings and support of prisoners in transit, for 
which no specific compensation is prescribed by law, and 
which are not a town charge, as prescribed by article 7 of the 
Town Law; but no charge for issuing or serving any sub- 
poena in any criminal action or proceedings issued or served 
on behalf of a defendant shall be allowed, unless otherwise 
ordered by the court in which the action or proceeding was 
pending. County Law, § 230. 

The board of supervisors has power to allow such further 
compensation for the service of process as they deem reason- 
able. Where no compensation in criminal cases is specially 
provided by law, constables shall receive such sum as the 
board of supervisors shall allow. Rev. Stat. pt. 4, ch. 2, tit. 
8, § 4. 

No travel fees shall be allowed for traveling to subpoena 
a witness, beyond the limits of the county in which the 
subpoena was issued, or of an adjoining county, unless the 
board auditing the account, shall be satisfied by proof that 
such witnesses could not be subpoenaed without additional 
travel; nor shall any travel fees for subpoenaing witnesses, 
be allowed except such as the board auditing the account, 
shall be satisfied were indispensibly necessary. Town Law, 
§ 169. 

By L. 1836, ch. 506, sec. 1 (Gen'l Laws, p. 4486), it is pro- 
vided that " whenever a subpoena for witnesses in criminal 
cases or complaints, containing one or more names, shall be 
served by a constable or other officer, such officer shall be al- 
lowed for mileage only for the distance going and returning, 
actually traveled to make such service upon all the witnesses 
in such case of complaint, and not separate mileage for each 
witness, unless the board of supervisors auditing accounts for 
such services shall deem it equitable to make a further al- 
lowance.'^ 

Compensation of deputy sheriffs and constables 
attending conrts. — A constable or a deputy sherifiT is en- 
titled, for attending a sitting of a court of record, pursuant 
to a notice from the sheriff, to the following fees: For each 
dav's actual attendance, in any county in the State, two 
dollars, except that in the counties of Albanv, Wyominsr. and 
Genesee the compensation shall be three dollars, and mileage 
as allowed by law to trial jurors in courts of record, and 
except also in th^ county of Westchester, where the com- 



Constable's Fees in Criminal Cases. 85 

pensation shall be three dollars per day, and except also that 
in the county of Orange, the board of supervisors may allow 
to such constables and deputy sheriffs for attending a sitting 
of a court of record pursuant to such notice not exceeding 
three dollars per day and mileage as aforesaid. Those fees 
must be paid by the county treasurer, upon the production 
of the certificate of the clerk, stating the number of days 
that the constable or deputy sheriff attended. But the pro- 
visions of this section shall not be applicable to the counties 
of Kings, New York and Erie. All other acts or section of 
acts conflicting herewith are repealed. Code Civ. Pro. § 3312. 
For conveying prisoners to penitentiary, a constable is paid 
such fees and expenses as the several boards of supervisors 
of the several counties of the State prescribe, and allow. 
Laws 1859, ch. 289, § 3, as am'd Laws 1876, ch. 108, § 2. 

Fees of officers in criminal proceedings, when 
town or county charge. — The purpose of the stat- 
ute is primarily to make the expenses of the crim- 
inal cases follow the jurisdiction and locality of the 
ofifense. 119 N. Y. 126. The jurisdiction of courts 
of special sessions is prescribed by section 56 of 
the Code of Criminal Procedure, and includes a 
large part, if not all, of the several offenses classed 
as misdemeanors. In the trial of all crimes men- 
tioned in such section the fees of the magistrates 
and other officers are chargeable against the town 
where the offense is charged to have been com- 
mitted. 

The fees of magistrates and other officers in pro- 
ceedings for the examination and commitment of 
persons charged with a felony or with offenses not 
specified in such section 56 of the Code of Criminal 
Procedure, are chargeable against the county. In 
case of 4 Denio, 260, it was held that fees of magis- 
trates and other officers are a charge/ upon the 
county: (i) Where the proceedings are not had in 
the county in which the offense was committed; 
(2) Where the proceedings are for felony; (3) 
» Where the proceedings or trial for the offense is 
had in the County or Supreme Court. In all other 
cases the expense is a town charge. 



FOR CONSTABLES. 



No I. 
Constable's Undertaking. 

Whereas, A. B., of the town of ^ , in the 

county of , was on the day of 

, 19 , duly elected (or appointed) 

constable of said town; 

Now, therefore, we, the said A. B., principal, and 
N. O. and R. S., of the town of , his sure- 
ties, do hereby, pursuant to section 54 of the Town 
Law, jointly and severally undertake that said A. B. 
will pay to each and every person who may be en- 
titled thereto, all such sums of money as he may 
become liable to pay on account of any execution 
which shall be delivered to him for collection; and 
also pay each and every person for any damages 
which he may sustain from or by any act or thing 
done by said A. B. as such constable, by virtue of 
his office. 

Dated this day of , 19 ... . 

A. B. 
, N. O. 
R. S. 
State of New York,] 

[ ss. : 
County of J 

On the day of , in the year 

19 , before me, the subscriber, personally came 

A. B., N. O. and R. S., to me known to be the per- 

(87) 



88 Constables^ Guide. 

sons described in and who executed the within in- 
strument, and severally acknowledged to me that 
they executed the said instrument. 

G. H., 
(Official title). 
County of , ss. : 

N. O. and R. S., being severally and duly sworn, 
each for himself deposes and says: N. O., that he 
is one of the sureties named in the foregoing under- 
taking; that he is a freeholder (or householder) 

within the State of New York ; that he is a 

by occupation, and resides in ...., county 

of , at No. street (and has 

his place of business at street, in the 

city of.., ) ; that he is worth the sum of 

dollars (twice the amount of the under- 
taking), over and above all just debts and liabilities 
and property exempt from execution; and R. S., 
that he is one of the sureties named in the foregoing 
undertaking; that he is a freeholder (or house- 
holder) within the State of New York; that he is 

a by occupation and resides in , 

county of , at No. street, in 

the city of ; that he is worth the sum of 

dollars (twice the amount of the under- 
taking), over and above all just debts and liabilities, 
and property exempt from execution. 

N. O., 
R. S., 
Sureties. 
Subscribed and sworn to before me, ] 

this... day of , 19 . j| 

J. K., (Official title). 

(Approval to be indorsed upon bond) : 
I hereby approve of the sufficiency of the sureties 
within named. 

Dated, , 19 

E. F., Supervisor, 
(or L. M., Town Clerk.) 



FoR.Ais. 89 

No. 2. 
Resignation of Constable. 

To X. Y., Town Clerk (or C. D., E. F., G. H. and 
J. K., Justices of the Peace) of the town 

of : 

I, A. B., of the town of , county of 

, having been duly elected (or appoint- 
ed) to the office of constable in and for the said 

town of , on the day of , 

19 , and having duly qualified as such officer, do 

hereby resign such office, to take effect upon the 
delivery of this resignation. 

Dated, , 19 

A. B. 



No. 3. 

Return of Personal Service of Summons on 

Individuals. 

Albany County, ss. : 

I hereby certify that on the day of , 

19 , I served the within summons on the within- 
named defendants, John Doe and Richard Roe, by 
delivering to and leaving with each of them, person- 
ally, a true copy thereof. 

Fees, $ 

A. B., Constable. 



No. 4. 
Return of Service of Summons and Cpmplaint. 

Albany County, ss. : 

I hereby certify that on the day of 

, 19 , I served the annexed summons 

and complaint on the within-named defendant, 
Richard Roe, by delivering to and leaving with him, 
personally, true copies thereof. 

Fees, $ 

A. B., Constable. 



90 CoisrsTABLEs'' Guide. 

No. 5. 
Return of Service upon a Corporation. 

Albany County, ss. : 

I hereby certify that on the day of 

, 19 , I served the within summons, 

personally, upon the Company, the 

defendant corporation within named, by delivering 
to and leaving with John Doe, the secretary of said 
corporation (or as the case may be), a true copy 
thereof. 

Fees, $ 



A. B., Constable. 



No. 6. 
Return of Service Upon a Railroad Corporation. 

Albany County, ss. : 

I hereby certify that on the day of 

, 19 , I served the within summons, 

personally, upon the Railroad Company, 

the defendant corporation within named, by deliver- 
ing a true copy thereof to Richard Roe, a freight 
agent of said defendant corporation, residing in 

the county of , no person upon whom 

process may be served having been designated by 
the defendant as prescribed in section 2880 of the 
Code of Civil Procedure, and there being no officer 
of said railroad company residing in said county. 

Fees, $ 

A. B., Constable. 



No. 7. 
Return of Service Upon One of Two Defendants. 

Albany County, ss. : 

I hereby certify that on the day of 

, 19 , I served the within summons 

upon the within-named defendant, John Doe, by 



FOEMS. 91 

delivering to and leaving with him, personally, a 
true copy thereof. And I further certify that I did 
not serve said summons upon the within-named de- 
fendant, Richard Roe, for the reason that I was un- 
able, after due diligence, to find said defendant 
within said county in time to make seasonable ser- 
vice thereof. 

Fees, $ 

A. B., Constable. 



No. 8. 
Affidavit of Constable as to Travel Fees. 

County of 1 

y ss. : 
Town of J 

A. B., being duly sworn, says that the travel 

charged in the fees herein, viz. : miles 

was necessary to perform the service with respect 
to which the above traveling fees are charged ; that 
no more miles are charged for than were actually 
and in good faith traveled for that purpose; that 
he had at the time no other official or private busi- 
ness upon the route so traveled, and that the travel- 
ing fees are charged upon one, the within mandate 
only. 

Sworn to before me, this ] 

^ day of , 19 \ 



No. 9. 

IForms of Returns of the Order of Arrest — Civil 
Proceeding. 

Albany County, ss. : 

I hereby certify that I have executed the within 
order of arrest by arresting the defendant this 



92 Constables' Guide. 

day of , 19 , and forthwith bringing 

him before the court in custody; and also that I 
have notified the plaintiff of the arrest. 

Dated, , 19 

A. B., Constable. 



Albany County, ss. : 

I hereby certify that I have executed the within 

order of arrest by arresting the defendant, this 

day of , 19 , and forthwith taking him 

before the justice issuing the same; and because 
said justice was unable to try the action, by forth- 
with bringing the defendant here in custody before 
another justice of the same town; and also that I 
have not been able with reasonable diligence to 
notify the plaintiff of the arrest of the defendant 
(or as the case may be). 

Dated, , 19 

A. B., Constable. 



No. 10. 
Inventory on Attachment. 

I have this day, by virtue of the foregoing war- 
rant of attachment, taken an inventory of the prop- 
erty attached and the estimated value of each and 
every item or article thereof; and the same is as 
follows : (Here give list of articles and value of 
each article.) 

Dated this day of , 19 • 

A. B., Constable. 



Forms. 93 

No. II. 

Certificate on Summons, Warrant of Attachment or 
Inventory. 

I do hereby certify that the within is a correct 
copy of the summons (or warrant of attachment), 
(or inventory) in this action. 

Dated, , 19 

A. B., Constable. 



No. 12. 



Return of Property Attached and Personal Service 

Made. 

County of 1 

I ss. : 
Town of j 

By virtue of the within warrant of attachment, 

I did on the day of , 19 , 

at , in said county, attach and take 

into my custody the goods and chattels of the de- 
fendant, John Doe, mentioned in the inventory, of 
which a certified copy is hereto annexed, and im- 
mediately thereafter made an inventory of the prop- 
erty so attached and immediately thereafter at 

in said county, I served the within 

summons, warrant of attachment, and ^said inven- 
tory on the said defendant,"^ by delivering to him, 
personally, a true copy of said summons, warrant, 
and inventory. 

Dated, , 19 

A. B., Constable. 



94 Constables^ Guide. 

No. 13. 

Return of Property Attached and Copies Left at 
Defendant's Residence. 

(Proceed to the ^ as in the above form, then add) 
by leaving a copy of each duly certified by me with 
Mary Doe, the wife of the defendant (or as the 
case may be), a person of suitable age and dis- 
cretion, at the last place of residence of the de- 
fendant in said county. And I further certify 
that said service was not made by delivering 
a copy of said summons, warrant, and in- 
ventory to the defendant, personally, for the reason 
that said defendant could not with reasonable dili- 
gence be found within said county. 

Dated, , 19 

A. B., Constable. 



No. 14. 

Return of Property Taken, and Service by Posting 
Copies, etc. 

(Proceed to the ^, as in the first form of return, 
then add) by posting a copy of each, duly certified 
by me, on the outer door of the defendant's last 
place of residence in said county, and also by de- 
positing another copy of each, duly certified by me, 
inclosed in a sealed post-paid wrapper, directed to 

said defendant at his residence at , in 

the post office at , that being the nearest 

post office. And I further certify that said service 
was not made by delivering a copy of said summons, 
warrant and inventory to the defendant, personally, 
for the reason that said defendant could not, with 
reasonable diligence, be found within said county 
and also that no person of suitable age and dis- 
cretion with whom to leave said copies could be 



Forms. 95 

found at defendant's last place of residence in said 
county. 

Dated, , 19 

A. B., Constable. 



No. 15. 

Return of Property Attached, Defendant Not 
Found, etc. 

(Proceed as in the first form of return to the "^j 
then add) by delivering a copy of said summons, 
warrant, and inventory, duly certified by me, to 
John Jones, in whose possession the property so 
attached was found. And I further certify that the 
defendant, John Doe, has no place of residence in 
this county; and that the service of said summons, 
warrant, and inventory was not made upon said de- 
fendant by delivering copies thereof to him, per- 
sonally, for the reason that he could not, with 
reasonable diligence be found within this county. 

Dated, , 19 

A. B., Constable. 



No. 16. 

Replevin — Notice by Constable to Plaintiff of 
Claim by Third Person. 

[Title of the Action.] 
Please take notice that John Jones claims the 
property replevied by me in this action ; that he 
has served upon me an affidavit of claim to the 
property, of which the annexed is a copy ; and that 
I require indemnity against said claim. 

* Dated, , 19 

A. B., Constable, 
To , Plaintiff. 



96 Constables" Guide. 

No. 17. 
Constable's Return in Replevin. 

County of Albany, ss. : 

I hereby certify that on the day of 

, 19 , at the residence of the defend- 
ant, Richard Roe, in the town of , in 

said county, I served the foregoing summons, affi- 
davit, and requisition upon said defendant, person- 
ally, by delivering to and leaving with him a copy 
of said summons, affidavit, and requisition; that at 
the same time and place I found in the possession 
of said defendant and forthwith replevied by taking 
into my possession the following chattels described 
in the foregoing affidavit, namely: (describe prop- 
erty), and that I now hold said chattels in my pos- 
session. 

Dated, , 19 

A. B., Constable. 

The forms of returns to a warrant of attacliment given 
herein may be readily varied so as to furnish a form for all 
cases of return in replevin. The above form may be followed 
in ordinary cases. 



No. 18. 
Constable's Return on Service of Subpoena. 

I hereby certify and return that I served the 
within subpoena upon the within-named John Doe, 

on the day of , 19 , at the 

city of , N. Y., by reading the same 

to him and at the same time paying to him the sum 
of twenty-five cents as his fees for one day's at- 
tendance as a witness. 

Dated, , 19 

Fees for service, $ 

A. B., Constable. 



FoKMS. 97 

No. 19. 

Retura of Constable on Service of Warrant of At- 
tachment Against Defaulting Witness. 

County of 1 

J^ ss. : 
Town of J 

By virtue of the within warrant of attachment I 
have attached John Doe and have his body, to- 
gether with the said warrant before the justice is- 
suing the same as by said warrant directed and re- 
quired. 

Dated, , 19 

Fees, $ 

A. B., Constable. 



No. 20. 
Return to the Venire. 

I hereby certify that on or before the 

day of , 19 , I personally served the 

within venire upon each of the following jurors 
therein named, by reading it or stating the sub- 
stance thereof to them, namely (insert here the 
names of the jurors served) ; and that I failed to 
serve said venire upon the within-named (insert 
here the names of the jurors not served), for the 
reason that I was unable, after diligent search, to 
find any of the persons so named. 

Dated, , 19 

A. B., Constable. 



No. 21. 

Form of Indorsement by Constable of a Levy. 

By virtue of the within execution, I have levied 
on two red cows, one bay mare, the property of the 
defendant, etc., this day of , 

19 

A. B., Constable. 



98 Constables' Guide. 

No. 22. 

Same, Where an Inventory Is Attached. 

By virtue of the within execution, I have, this 

day of , 19 , levied on the 

goods and chattels of the defendant, mentioned in 
the annexed inventory. 

A. B., Constable. 



No. 23. 
Form of an Inventory to Be Attached. 

An inventory of goods and chattels this day levied 
upon and taken into my custody, by virtue of the 
annexed execution: 

One red cow, One stack of hay, 

Ten sheep, Ten common chairs. 

Three hogs, One sofa. 

A. B., Constable. 



No. 24. 
Form of Receipt for Goods Levied Upon by Con- 
stable and Left in the Possession of Another 
Person. 

JUSTICE'S COURT. 
C. D. 
against 
E. F. 

Execution issued by Richard Roe, one of 
the justices of peace of the county of 
, for $175 GO 

Constable's fees for collecting 2 50 

$177 50 



Forms. 99 

Under and by virtue of the execution above de- 
scribed, A. B., a constable of the county of , 

has levied upon the following goods and chattels, 
the property of the said E. F., viz.: (Enumerate or 
describe the articles). 

Received this day of , 

19 , of the said A. B., the goods and chattels above 

mentioned, which I promise to deliver to him at any 
time when he shall demand the same, at the dwell- 
ing house (or barn, or other agreed place) of the 

above-named E. F., in the town of , in 

the county of ; or, in default thereof, 

I do hereby agree and promise to pay him the 
amount of said execution, with the said costs and 
fees for the collection thereof. 

X. Y. 



No. 25. 
Constable's Notice of Sale Under Execution. 

By virtue of an execution (or several executions) 
issued from a Justice's Court, against the property 
of Richard Roe, I have seized and taken (name the 
articles with particularity), which I will expose to 
sale at public vendue, to the highest bidder, on the 

day of , 19 , at ten o'clock 

in the forenoon, at the dwelling house (or barn) of 
said Richard Roe, in the town of 

Dated, , 19.. 

A. B., Constable. 

Notice of Postponement. 

The above-mentioned sale is postponed to the 

^ day of , 19 , at the same 

h*our and place. 

Dated, , 19 

A. B., Constable. 



100 Constables' Guide. 

No. 26. 

Memorandum of Sale of Goods Under Execution^ 

etc., to Be Signed by Purchaser. 

JUSTICE'S COURT. 

C. D. 

against [ Before , Esq., 

Justice. 
E. F. 

July 19, 1904, William Jones bought of A. B., 
constable, at auction, on an execution issued in this 
action : 
One bay horse $150 00 



William Jones. 



No. 27. 

Return of Constable to Warrant of Arrest; 

Criminal. 

I have arrested the defendant named herein, and 
have him here in my custody and possession as 
commanded herein. 

Dated this day of , 19 

A. B., Constable. 



No. 28. 
Return of Constable Where All of Defendants Can- 
not Be Found — Criminal Arrest. 

I have arrested and have now in my custody J. S. 
and W. M., two of the defendants named herein, 
but I cannot find K. C, one of the defendants named 
herein. 

Dated this day of , 19 

A. B., Constable. 



Forms. 101 

No. 2g. 

Return of Constable Where Magistrate Who Issued 
Warrant Is Absent — Criminal Arrest. 

As commanded herein, I have arrested R. C, the 
defendant named herein and I hereby make return 
that immediately after making the arrest I brought 
the said defendant R. C. to the office of C. W. H., 
the magistrate who issued the warrant, but that the 
said magistrate was absent therefrom. 

Dated this day of , 19 

A. B., Constable. 



No. 30. 
Affidavit to Inventory on Search Warrant. 

Albany County, ss. : 

I, A. B., the officer by whom this warrant was 
executed, do swear that the above inventory con- 
tains a true and detailed account of all the property 
taken by me on the warrant. 



Subscribed and sworn to before me, ] 

this day of , 19 \ 

C. W. H., Justice of the Peace. 



A. B. 



No. 31. ^ 

Return to Search Warrant. 

I, the officer to whom this warrant was delivered 
for execution, do hereby certify that I did on this 
day of , 19 , take the prop- 
erty therein described from C. D., at (here describe 
building in which it was found) under and by vir- 



102 Constables" Guide. 

tue of this warrant, and an inventory has been taken 
of this property, which is hereto annexed. 

Dated this day of , 19 

A. B., Constable. 



No. 32. 
Return of Service of Subpoena. 
County of Albany, ss. : 

I do hereby certify and return that I did on the 

day of , 19 , in the town 

of , said county, serve the within 

subpoena on M. N., by delivering it to and leaving 
a copy thereof with him and at the same time show- 
ing him the original. 

Dated, this day of , 19 

A. B., Constable. 



index: 



ACTION AGAINST CONSTABLE: page. 

for taking, etc., exempt property 35 

for not returning execution 40 

for money collected 41 

AFFIDAVIT: 

upon claim for travel fees 82 

AMBULANCE: 

interference with 78 

ANIMALS: 

cruelty to 79 

APPOINTMENT: 

to fill vacancy 5 

ARREST IN CIVIL CASE: 

order of 42 

its contents 42 

duty of constable 42 

return 43 

when plaintiff notified must appear 43 

constable to keep defendant in custody 43 

proceedings upon transfer 44 

ARREST BY AN OFFICER UNDER A WARRANT: 

arrest defined 62 

by whom arrest may be made 62 

every person bound to aid officer in an arrest 62 

when arrest may be made 62 

how an arrest is made 62 

no further restraint allowed than is necessary.... 62 

officer must state his authority, etc r . . . . 62 

if defendant flee or resist, right of officer 63 

when officer may break open a door or window 63 

ARREST BY AN OFFICER WITHOUT A WARRANT: 

in what cases allowed 63 

when officer may break open a door or window 63 

when officer may arrest at night 63 

officer must state his authority, except, etc 64 

arrest of person by bystander for breach of peace.. 64 

ATTACro^IENT: 

warrant of 44 

warrant ; form and contents thereof 44 

warrant; how executed; perishable property may be 

sold 45 



104 Index. 

ATTACBMEJ^T— Continued : page. 

service of summons and warrant upon defendant .... 46 

undertaking by defendant ; redelivery to him 46 

claim by third person; bond and delivery thereupon. 46 

return of warrant 47 

ATTORNEY: 

constable not to practice as 13 

BASTARDY PROCEEDINGS; 

examination by the magistrate 73 

issuance of warrant 73 

warrant, when to be served in another county 73 

magistrate in another county, duty of 73 

on giving undertaking, defendant to be discharged . . 73 

if undertaking not given 74 

when magistrate issuing warrant is unable to act. . 74 

BENCH WARRANTS: 

for arraignment 65 

by whom, and how issued 66 

direction in, if indictment be for misdemeanor . . 66 

how served 66 

proceedings before magistrate of another county. 66 

for judgment 66 

in felony, necessity of presence of defendant for 

pronouncing judgment 67 

in misdemeanor, judgment how pronounced 67 

when defendant is in custody 67 

when defendant is on bail 67 

form of warrant 67 

service of warrant 68 

BETTINO AND GAMING: 

duty of constable as to 78 

BOND: 

See Undertaking. 

BOOKS AND PAPERS OF EX-OFFICER: 

search warant for 72 

CHATTEL: 

action for recovery of 48 

CHILDREN: 

constable's duties as to 79 

CLAIMS: 

constable not to buy 13 

COMMISSION: 

powers of 29 

COMPLAINT: 

service of, with summons 18 



Index. 105 

CONSTABLE : page. 

qualifications for holding office of 1 

election of 1 

failure to file statement of election expenses 4 

resignation of 4 

vacancy in office of, how created, etc 5 

special, appointment and powers of 6 

liability for improper performance of duty 7 

of officers for escape 11 

for accepting rewards and buying claims, etc... 13 

not to buy claim, etc 13 

penalty for 13 

not to practice as attorney 13 

sheriffs to notify to attend court 14 

penalty for neglect to attend court 14 

to act as crier 14 

to execute mandates in person 15 

to keep jury; his oath 26 

to keep jury in specal proceedings ; penalty 26 

service of subpoena by 27, 75 

action against, for taking, etc., exempt property. ... 35 

not to purchase on sale made by him under execution. 38 

action against for not returning execution 40 

duty of, whose term of office has expired 41 

action against for money collected 41 

not to act under execution after return day 41 

duties of, under order of arrest, civil action 42 

duties of, under warrant of attachment 45 

duties of, in replevin 49 

duties in summary proceedings 53 

duties of, as to straying animals 56 

a peace officer 59 

duties under warant of arrest 60 

arrest by, under warrant 62 

every person bound to aid, in an arrest 62 

arrest by, without warrant 63 

service of bench warrant by , 66 

rights and duties of, under search warrant 70 

duties of, in bastardy proceedings 73 

duty of, when stolen property comes into his posses- 
sion 75 

to execute judgment of court of special sessions 77 

duties of, as peace officer generally 78 

to arrest persons disturbing religious meetings 78 

to* arrest vagrants 78 

to prevent interference with ambulance 78 

duties of, as to gambling 78 

duty of, as to racing 78 

duties of, under liquor tax law 79 

rights under game law 79 



106 Index. 

CO'^STABLE—Contimied : page. 

duty of, as to cruelty to animals 79 

duty of, as to peddlers 79 

duties of, as to children 79 

not to take fees not prescribed by law. . . , 82 

not to take fees for services not rendered 82 

compensation of, for attending courts 84 

CORONER'S WARRANT: 

warrant for arrest of party charged 69 

warrant, how executed ; . . . . 69 

CORPORATIONS: 

service of summons upon, in civil action 19 

proceedings against, in criminal cases 74 

summons, by whom issued, and when returnable. 74 

when and how served 74 

CRIER: 

constable to act as 14 

DEFAULTING WITNESS: 

warrant of attachment against 27 

warrant, how executed ; fees thereupon 28 

when defaulting witness is in adjoining county 28 

defaulting witness ; how fined 28 

execution thereupon * * 28 

DEFENDANT: 

recommitment of g5 

DISORDERLY PERSONS: 

on complaint, warrant to be issued 72 

DOMESTIC CORPORATIONS: 

service of summons upon I9 

ELECTION: 

of constables 2 

ELECTION EXPENSES: 

failure to file candidate's statement of 4 

EMBEZZLED PROPERTY: 

disposal of 75 

ESCAPE: 

liability of officer for H 

retaking after !'.!'.!!! 64 

EXECUTION: 

when justice may issue 29 

general requisites of 29 

upon judgment for money 30 

against joint debtors ' * 30 

renewal of *.'.*.!*. 31 



li^DEX. 107 

EXECUTIOX— Co>H' Imied : page. 

property exempt from 31 

what personal property of householder. is exempt. 31 

additional personal property, when exempt.... 32 

right of action for taking, etc., exempt property. 35 

woman entitled to same .exemption as householder 36 

indorsement of levy; notice ol sale 36 

levy; how maiie on .personal property 36 

sale on execution, etc. ; when and how conducted .... 37 

purchase on such sales, by constable, prohibited.... 38 

personal property bound by execution 38 

interest of bailor in goods pledged may be sold 38 

sale of personal property; how made 38 

return of execution 39 

execution against the person *. 40 

imprisonment of judgment debtor 40 

action against constable for not returning execution. 40 

const abl^^^ot to act under execution after return day. 41 

action against constable for money collected 41 

duty of constable whose term of office has expired. . 41 

upon finding of defaulting witness 28 

upon judgm.ent in action for a chattel 52 

EXEMPTION: 

from execution 31 

EXPRESS COMPANIES: 

service of summons upon 21 

EXTORTION: 

penalty for 82 

FEES: 

in civil cases 80 

taking fees not prescribed by law, prohibited ... 82 

taking fees for services not rendered, except, etc. 82 

penalty for ejctortion , 82 

affidavit upon claim for travel fees 82 

constable's fees to be paid before services rendered.. 82 

payment of, upon demand for jury trial 23 

for executing warrant of attachment aigainst default- 
ing witness 28 

in special proceedings 81 

in criminal cases 83 

compensation of constables attending courts .... 84 
fees of officers in criminal proceedings, when town 

or county charge 85 

FELONY: 

arrest of person guilty of 59 

FOREIGN CORPORATIONS: 

service of summons upon 19 



108 Index. 

FORMS: PAGE. 

constable's undertaking 87 

resignation of constable 89 

return of personal service of summons on individuals. 89 

return of service of summon and complaint 89 

return of service upon a corporation 90 

return of service upon a railroad corporation , 90 

return of service upon one of two defendants 90 

affidavit as to travel fees 91 

returns of the order of arrest; civil proceeding 91 

inventory on attachment 92 

certificate on summons, warrant of attachment or in- 
ventory 93 

return of property attached; per^nal service made. 93 
return of property attached; copies left at defend- 
ant's residence 94 

return of property taken; service by posting 94 

return of property attached, defendant not found, 

etc 95 

replevin; notice of claim by third person 95 

return in replevin 96 

return on service of subpoena .'. 96 

return on service of warrant against defaAilting wit- 
ness 97 

return to the venire 97 

indorsement of a levy 97 

same, where inventory is attached 98 

inventory to be attached 98 

receipt for goods levied upon and left with another 

person 98 

notice of sale under execution 99 

notice of postponement of sale 99 

memorandum of sale of goods under execution, etc. . 100 

return to warrant of arrest ; criminal 100 

return, where all defendants cannot be found 100 

return, where magistrate issuing warrant is absent. . 101 

affidavit to inventory on search warrant 101 

return to search warrant 101 

return of service of subpoena 102 

GAMBLING: 

constable's duties as to 78 

GAME PROTECTOR: 

rights of constable same as those of, etc 79 

HABEAS CORPUS: 

how served 68 

fees and undertaking, when required 68 

HABITUAL CRIMINALS: 

always liable to search, etc 71 



Index. 109 

INDORSEMENT : page. 

of levy under execution 36 

INSURANCE COMPANIES: 

service of summons upon 21 

JOINT DEBTORS: 

execution against 30 

JURY TRIAL: 

demand of 23 

payment of fees upon demand of 23 

ballots for, how prepared 25 

JURY: 

constable to keep 26 

LEVY: 

on execution 36 

LIABILITY: 

for improper performance of duty 7 

of officers for escape 11 

for accepting rewards and buying claim, etc 13 

LIQUOR TAX LAW: 

duties of constable under 79 

MAGISTRATE: 

defined 58 

who are magistrates 58 

MANDATES : 

general requisites of 15 

constables to execute in person 15 

sheriff to act where execution of is resisted 16 

MISDEMEANOR: 

arrest of person guilty of 60 

NOTICE OF SALE: 

under execution 36 

OATH: 

of office 2 

how administered 2 

filed in town clerk's office 2 

effect of failure to execute and file 2 

constitutional oath 2 

acting in public office without executing and 

filing 4 

of constable keeping jury 26 

of constable on retirement of jury in courts of special 

sessions 77 

OBSCENE OR INDECENT BOOKS, ETC.: 

search warrant for 72 



110 Index. 

PEACE OFFICERS: • page. 

who are 59 

duties of constable as „ 78 

exceeding authority under search warrant 71 

PEACE WARRANT: 

issuance of : 68 

PEDDLER: 

arrest of 79 

PRECEPT IN SUMMARY PROCEEDINGS: 

service of 53 

return upon service of , 55 

QUALIFICATIONS: 

for holding office of constable 1 

^RACING: 

duty of constable, as to 78 

RAILROAD CORPORATIONS: 

service of summons upon 21 

RECOMMITMENT OF DEFENDANT: 

may be arrested in any county 65 

if for failure to appear for judgment, must be com- 
mitted 65 

RELIGIOUS MEETINGS: 

arrest of persons disturbing 78 

REPLEVIN: 

when action may be brought 48 

affidavit and undertaking 48 

requisition 48 

requisition, how executed ; service of summons, etc . . 49 

return of constable ., 50 

defendant may reclaim chattel, etc. 50 

when and to whom must deliver chattel 50 

penalty for wrong delivery , 51 

claim of title by third party 51 

execution upon judgment 52 

RESCUE: 

retaking after 64 

RESIGNATION: 

of town officers 4 

of public officers generally 5 

RESISTANCE : 

to execution of mandate .:........ 16 

of defendant to arrest in criminal case 63 



Index. Ill 

RETAKING, AFTER ESCAPE OR RESCUE: page. 

may be at any time, or in any place in the State. ... 64 

may break open a door or window! 64 

RETURN: 

of summons 23 

of execution 39 

on arrest in civil action 43 

of warrant of attachment . . 47 

in replevin y 50 

in summary proceedings .". 55 

of search warrant 71 

REWARDS : 

liability for accepting 13 

SALE: 

on execution ' 37 

SEARCH WARRANTS: 

defined ." 69 

magistrate, when to issue 70 

by whom served 70 

officer may break open door or Window 70 

when may be served in the night time 70 

within what time must be executed and returned. . . 71 

receipt for property taken r 71 

return of 71 

delivery to magistrate of inventory of property taken. 71 

peace officer, exceeding his authority 71 

habituaU criminals; liable to search, etc. .^ 71 

for books and papers of an ex-officer 72 

for obscene or indecent books, prints, etc 72 

SECOND SUlVilMONS: 

when issued 22 

SHERIFF: 

to permit access for purpose of service of summo;Qs. . 22 

SPECIAL COXSTABLES : 

appointment and powers 6 

SPECIAL PROCEEDINGS: 

constables to keep jury in 26 

SPECL\L SESSIONS: 

courts of . . ::...; 76 

jury, how summoned 76 

simimoning jury, and returning order 76 

punishing officer for not returning list 77 

talesmen, when and how ordered and summoned .... 77 

oath of officer on retirement with jury 77 

judgment, by whom executed 77 



112 Index. 

SPECIAL SESSIONS— ContinnccJ : page. 

when defendant to be continued in custody of ofScer 

or committed to jail 78 

commitment, by whom executed 78 

STOLEN OR EMBEZZLED PROPERTY: 

disposal of 75 

STRAYING ANIMALS: 

precept ; how served , 56 

warrant to sell ; execution thereof 57 

SUBPOENA: 

when justice may issue in civil case 27 

how served 27 

in criminal case 75 

by whom served 75 

how served 76 

SUMMARY PROCEEDINGS TO RECOVER REAL 
PROPERTY: 

precept, how served 53 

baudy house 54 

return 55 

trial 55 

warrant to dispossess defendant 55 

execution of warrant 56 

SUMMONS : 

contents of 15 

general requisites of 15 

service of 16 

when may be served 16 

where served 17 

how served , 17 

when service not legal 18 

complaint with . 18 

upon corporation 19 

upon domestic corporation 19 

upon foreign corporation 19 

upon person designated 20 

upon railroad corporations 21 

upon express and insurance companies 21 

second and third summons ; effect thereof 22 

sheriff to permit access for purpose of service 22 

return of 23 

summons upon an information against a corporation. 74 

SUNDAY: 

constable not to serve process on 16 

TERM OF OFFICE: 

of constable 2 



Index. 113 



THIRD StTMMONS: page. 

when issued 22 

TRANSFER OF CASE TO ANOTHER JUSTICE: 

proceedings upon 44 

TRAVEL FEES: 

affidavit upon claim for 82 

TRIAL: 

by jury, payment of fees upon demand of 23 

UNDERTAKING: 

how approved 3 

form of 3 

effect of failure to execute and file 2 

acting in public office without executing and filing. . 4 

VACANCIES IN OFFICE: 

how created 5 

appointment to fill, how made and when filled 5 

VAGRANTS: 

arrest of 78 

VENIRE : 

delivery, execution and return of 24 

new venire, etc 25 

WARRANT: 

of attachment against defaulting witness 27 

to dispossess defendant in summary proceedings.. .. 55 

to sell straying animals . . 57 

of arrest in criminal cases 58 

defendant arrested for felony 59 

defendant arrested for a misdemeanor 60 

proceedings on taking bail from the defendant. . 60 

when bail is not given . 60 

prisoner carried from county to city 60 

power and privilege of officer .... 60 

when magistrate issuing warrant unable to act. . 61 

defendant to be taken before magistrate 61 

arrest by officer under 62 

arrest by officer without 63 

bench, for arraignment 65 

bench, for judgment 66 

coroner's warrant 69 

search warrant 70 

against disorderly persons 72 

bastardy proceedings 73 

of attachment 44 

WITNESSES : 

attachment against defaulting 27 



OCT 1 1904 



OPVnELTOCAT.U 
OCT, 1 19W 



G-CT. 7 jiga-j 



